The Indian Courts are overburdened with numerous pending cases. Justice V.V. Rao once stated, “It would take 320 years for the Indian judiciary to clear millions of pending cases.” Therefore, it is always advisable to use the Alternate Dispute Resolution mechanisms wherever possible. Mediation has emerged to be one of the most popular Alternate Dispute Resolution mechanisms in India.
Mediation is a mechanism of Alternate Dispute Resolution, i.e., outside the Courtroom wherein a third party is appointed as a mediator who helps the parties to the dispute in reaching to a mutually decided solution. It is a process of attaining a solution without going through the lengthy process of litigation. The role of the mediator is absolutely unbiased and the solution provided through mediation is not binding on the parties to the dispute.
The use of Mediation has been annunciated under the Arbitration and Conciliation Act, 1996 and the Code of Civil Procedure, 1908.
The Indian judiciary has, time and again tried to promote Mediation to settle matrimonial disputes. This is because the process of Mediation is beneficial for the parties as well as the Courts of law. While on one hand, it is a cost-effective, speedy, less emotionally draining, and confidential process for the parties, it helps in reducing the burden on the Courts on the other hand.
Mediation is one of the most common mechanisms of Alternate Dispute Resolution (ADR). The concept of Alternative Dispute Resolution denotes the process in which disputes are addressed and settled outside the Courtroom. In a more detailed language, Alternate Dispute Resolution refers to the ways in which disputes are resolved without any litigation.
Mediation is an old process of Alternate Dispute Resolution practiced since time immemorial. It is a cost-effective and a secretive procedure to maintain privacy, especially in family matters keeping them a secret only amongst the parties and the mediator. Moreover, the solution given by the mediator is not binding on the parties rather, the solution is what both the parties have agreed to. The parties, respecting each other’s concerns, come to a mutual settlement in a peaceful manner. Thus, it proves to be one of the best Alternate Dispute Resolution mechanisms.
While mediation is considered to be a beneficial process for the parties, it is equally beneficial for the Courts as when the cases are referred to Mediation, the Courts are less burdened. It is termed the most hassle-free procedure of dispute redressal. The disputes are resolved amicably without jeopardizing the parties’ relationship.
As defined in Black’s Law Dictionary, Alternative Dispute Resolution is a method of dispute resolution involving one or more third parties for settling the disputes by means other than litigation, such as arbitration or mediation. However, the resolution method of Mediation is considered to be the most cost-effective, convenient, speedy, and confidential. In India, A The process of mediation involves three parties, i.e., the two parties to the dispute and the mediator. It is the process wherein the mediator tries to talk to the two parties and help them in attaining a solution that is mutually decided by them. The mediator acts as an intermediary to bring the parties to the dispute to an understanding while the decision-making power still rests with the parties, i.e., the mediator does not have the right to decide any outcome of a dispute or compel the disputing entities to agree upon the same. The mediation must be neutral and unbiased, i.e., he/she cannot be party-centric.
Rule 4 of the Civil Procedure – Alternate Dispute Resolution Rules, 2003 (ADR Rules) defines mediation by stating that:
“Settlement by ‘Mediation’ means the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit by the application of the provisions of the Mediation Rules, 2003 in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing that it is the parties own responsibility for making decisions which affect them.”
In Afcons Infrastructure Ltd v M/s Cherian Varkey Construction, the Supreme Court of India clarified that the words ‘mediation’ and ‘conciliation’ are used synonymously. In this commentary, the words ‘mediation’ and ‘mediator’ are used; they should be taken also to mean ‘conciliation’ and ‘conciliator’.
In India, there are majorly two types of Mediation that are followed, i.e., Court referred mediation and private mediation. The former is when the Court, under Section 89 of the Civil Procedural Code, 1908 refers the pending dispute to mediation. This type of Mediation is most commonly practiced in matrimonial disputes while the latter is when the parties to the dispute mutually decide to appoint a mediator on a fixed-fee basis to resolve their dispute.
There has been no concrete legislation on Mediation in India. Therefore, with an intent to promote and strengthen the position of Mediation as an effective Alternative Dispute Resolution mechanism, the Ministry of Law and Justice on November 5, 2021, released the Draft Mediation Bill 2021 in the public domain. In recent times, many experts and legal luminaries have expressed a dire need for a stand-alone law on Mediation in India.
MEDIATION IN MATRI
“If necessity is the mother of invention, conflict is its father”, this phrase by philosopher Kenneth Kaye has been coined very beautifully. In simple words, it is said that if there are relationships, there must be room for conflicts too. Family disputes are extremely sensitive and if not handled with the utmost care, they can turn out to be ugly. Marriage is the most fundamental societal building block in India. It has always been the pillar of stability in the Indian society. An Indian family is a web of complicated relationships, emotions, and sentiments. As the smallest unit of society, the family is often affected by dissolution, separation, and various other types of disputes. The sanctity of marriage is not merely upheld by the religious books but also by the law of the land. Marriage is seen as a legal and social union of two people and divorce is the legal termination of a valid marriage.
Family or matrimonial disputes are deemed to be too delicate to be left to the whims or combative jurisprudence of the current legal system, which entails a great deal of mudslinging on both sides by its very essence. So, in order to maintain the privacy and sanctity of marriage, it is imperative for the Courts to handle them with the required sensitiveness. With the times evolving, the social structure of India is constantly evolving too, and with the growing literacy rate and economic independence among couples, matrimonial conflicts are on the rise. Women are not letting men suppress them anymore. Hence, there has been a significant rise in the number of divorces in India. Black’s Law Dictionary defines divorce as “the legal separation of man and wife.”
The traditional approach of litigation is also not seen as the best remedy since it is highly time-consuming, involves various formalities, is cost borne, and emotionally exhausting making it incompatible with the requirements of the modern-day couples. The unsatisfied side turns to appeals, reviews petitions, and so on in the hope of reaching a favorable judgment due to court orders that do not have mutual consent of the parties. Thus, most of the matrimonial disputes are usually resolved by the process of Mediation. While the Indian Courts are equipped to deal with the legal issues arising in a case of divorce, they cannot address the social and emotional issues that come along. It is imperative to take care of these issues too as till the time the couples are not emotionally and socially strong enough to handle the divorce case, it becomes highly difficult for the Courts to provide them with their desired solution.
In the Indian society, it is always believed to restore relationships wherever possible and through the process of Mediation, the parties are given a chance to rethink their decision and try to look out for a possibility of reconciliation. One such example is that of a case of the High Court of Karnataka, i.e., Mohd. Mushtaq Ahmad v. State wherein the wife had first lodged a divorce petition and a First Information Report (FIR) against her husband under Section 498A of the Indian Penal Code as disputes arose between them after the birth of a female child. The Court administered the parties to go for Mediation under Section 89 of the Civil Procedural Code, 1908. The matter was resolved through mediation where the wife agreed to take the FIR back. The Court thus, quashed the FIR filed by the wife exercising its inherent power of quashing of an FIR.
Since matrimonial issues are considered to be private and secretive in nature, the best way to resolve these issues is through the process of Mediation since it involves only a mediator other than the parties to the dispute. By this, the dispute does not come to the knowledge of the general public, and the issues are resolved amicably making it a confidential process. Mediation is a speedy process that helps the parties to the dispute to arrive at a mutually decided settlement without hassle. The Indian judiciary has time and again encouraged Mediation and has expressed that Mediation is the most realistic method for resolving matrimonial disputes.
The process of Mediation provides the couples to understand their requirements, address their issues, see if there is a possibility of reconciliation and when it is evident that the parties claim an irretrievable breakdown of the marriage and choose to move forward with legal separation, the mediator helps them in separating without any litigation and in a peaceful manner.
Marriages cannot be dissolved or interrupted quickly because it is in the best interests of society’s peace. It is in the public interest to preserve matrimonial relations and, to the extent practicable, to prevent them from being disrupted at the request of any of the parties to a marriage. Mediation is not only time-efficient, but it also aims to reduce acrimony and strained relationships that may arise from litigation. In India, Mediation is becoming increasingly common, especially in matrimonial disputes.
There has been a tremendous change in the legal framework concerning matrimonial disputes in India in the recent times. These changes have led to the emergence of the process of Mediation as a widely accepted dispute resolution mechanism for settling matrimonial disputes. Mediation being cost-effective, time-efficient, and less emotionally draining has become a choice for most couples to settle their pending disputes.