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Role of Mediation in Divorce

It is the spirit and not the form of law that keeps the justice alive

LJ Earl Warren

Introduction

The concept of conflict resolution through Alternative Dispute Resolution (ADR) is a mechanism adopted to resolve conflict in a non-adversarial manner. A dispute is basically ‘lis inter partes’, i.e. legal suits between parties. A dispute among a married couple can be any issue, from a small one to a big one. Sometimes,one feels that there is a huge problem, but in reality it’s not a big issue, it’s just two partners creating an issue out of lack of trust, care, respect and in major case due to cruelty. In such cases judicial separation is only viewed as a solution. In such cases, Mediation is one of the frequently used methods of negotiating a divorce settlement.

Mediation allows the parties to divorce to take control of their own lives, taking control of planning their own future and the future of their child, their child’s custody and support.

Divorce Mediation

Mediation is a form of ADR in which the parties to a lawsuit meet with neutral mediator to settle their disputes. The mediator’s job includes listening to evidence, help the litigants to understand each other’s points and arguments and to facilitate the negotiation of the dispute.

In a Divorce Mediation, the parties to the dispute, i.e. the soon to be ex-spouses meet with a neutral third party, known as a family law divorce mediator (specially trained to help couples with dispute resolution),  who can be a divorce lawyer or not be a licensed attorney, tries to draw out the differences among the parties which arises conflicts among them. With the help of the mediator, the couple works out on agreements on the issues to be solved. The common issues in a divorce mediation are[1]-:

  1. Distribution of property (Assets/Liabilities),
  2. Child Custody and Parenting Time,
  3. Child Support/Maintenance,
  4. Retirement,
  5. Taxes,

Divorce Mediation is a flexible process, where the mediator through open communication, strives to resolve the disagreement between the parties. Mediation is preferred by many people before going to the court. One can make a prior request for mediation, in writing.

Stages of Divorce Mediation

Most mediation go through a series of five stages. These stages may vary from mediator to mediator and the dispute at hand. These five stages, some of which may be repeated at various points during mediation are[2] -:

  1. Introductory Stage:  The first stage or an introductory stage involves a formal introduction of the parties to dispute with the mediator. A brief factual background containing why, how, and what were the circumstances which gave rise to dispute in the first place is given to the mediator. Depending upon the issues, the mediator suggests an approach to optimise the chances of settlement of the dispute.
  • Information- Gathering stage: For the successful conduct of the mediation, the parties to the dispute and the mediator, all need to be fully aware and informed about the facts and issues of the case. It is done, through gathering information’s and necessary documents with regards to the gathering of information such as, life insurance policy, etc. The information gathering stage sometimes and, in some cases, starts at an early stage of introductory or at times it takes place after the introduction stage. The mediator begins the process of mediation through discussing the general legal rules which may apply to the case, such as the law related to the state which may be pronounced by the judge in dividing the assets of the couples or in safeguarding the custody of the child and other matters related to the child’s support.

This general information may help the couples to decide on how to proceed with the issue at hand. As per the progression of this stage, the mediator proceeds further summarising the information being acquired by him. This second stage may take 2 to 3 course of time period.

  • Framing Stage:After gathering the general information’s about the issue, the mediator helps the spouses to outline the reason for wanting a settlement. These reasons for settlement consist of individual priorities, goals and values, often referred as “needs and interests” of the parties.In the framing stage, the mediator, with the information at hand strives to reach a point of common acceptance among the parties on the compromises to be done to reach a settlement among them. After acceptance from both the parties, the mediator proceeds with framing of issues and interest clearly.
  • Negotiating Stage:After the stage of issue and interest framing, the stage of negotiating an agreement and concluding with the settlement occurs. This stage involves the problem-solving phase of mediation where the mediator put forth various options for the settlement of the dispute. Along with the help of the mediator, the spouse evaluates the possible options available for settlement, till they arrive at one that best suits both the parties.
  • Concluding Stage: The final stage or the stage of conclusion. In this stage all the tentative settlement agreement are put into writing and copy of the same is circulated among the parties for review. If both the parties show no issue in the agreement, the mediator prepares a memorandum to be signed by both. This memorandum, summaries the essential points of settlement which can be used as a basis for preparing a formal agreement that will be filed with the court.

Court’s role in Mediation

The use of mediation procedure in India has been communicated to the public through Arbitration and Conciliation Act,1996 and the Code of Civil Procedure, 1908. Section 30 of Arbitration and Conciliation Act states that “he arbitral tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement”, and section 89 of the Code of Civil Procedure states that “the court may refer the parties for mediation if there exists an element of settlement”. But it does not mean that criminal matters may not be purview of mediation. Divorce cases may not always involve civil matters, it majorly involves criminal matters especially matters of domestic violence. In 2013, the Supreme Court sanctioned all criminal courts to adopt the mediation process with specific consideration to cases under Section 498A of IPC.

The Judiciary has adopted mediation to settle matrimonial disputes, even in criminal cases:

In Mohammed Mushtaq Ahmad v. State[3],the wife filed a divorce petition alongside FIR against husband under section 498A of IPC over a dispute which subsequently arose over the birth of a girl child. The Karnataka High Court, under sec 89 of CPC, directed the parties to mediation. The matter was settled and the wife decided to quash the FIR against the husband. The court allowed quashing by stating that “The court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice.”

In K.Srinivas Rao v. D.A.Deepa[4], the apex court held that mediation is  must before divorce. Through this case, the court has made it evident that cases of divorce arising out of Section 498A of IPC are not ignored out of the courts eye. The suggestion of the court to opt for mediation is in the public interest of the parties and to save them from hectic procedures and as such the court may only allow appropriate cases of such nature to opt for mediation.

In Afcons Infrastructure Ltd. V. Cherian Varkey Construction Co. pvt ltd[5], the Supreme Court held that even when a case is referred to a mediator, the court retains its control and jurisdiction over the matter and the court mediation settlement will have to be placed before the court for recording the settlement and disposal.

Advantages of Divorce Mediation

Mediation has emerged to be the most widely accepted practice for settling disputes. The main reason for “justice delay” in India is due to lot of pending cases and population ratio, and as quoted by Justice V.V. Rao “It would take 320 years for the Indian judiciary to clear millions of pending cases.” Mediation provides and follows the principle of timely justice. In comparison to the Court system, Mediation takes less amount of time in delivering a fast settlement agreement in rendering justice by resolving the disputes. Apart from timely justice, mediation has several advantages to be opted for, such as-

  1. It is relatively inexpensive as compared to trial proceedings.
  2. It has simple proceedings to be followed due to the informal procedures, which are preferred by parties against hectic procedures of the court.
  3.  It allows parties to review and adjust their settlements to the conflict.
  4. The power of control over the settlement of the disputes lies with the parties and the mediator acts per the preference of the parties.
  5. It allows both the parties have a win-win situation, where neither of the parties faces lose, where as in trial proceedings its either win or lose situation for either of the party.
  6. The settlement reached in mediation have more chance of acceptance than the settlement in the court proceedings as the settlement in mediation is agreed and negotiated by both the parties to the dispute.

Conclusion

Mediation is a most accepted and followed practice of negotiation practice, where the parties have direct involvement in the process with the help of mediator. The scope of mediation is to provide a fair, speedy and impartial decision to the parties. Mediation can be opted for any matter as such. It has been opted in majority of divorces, as it is a non-judicial and informal process of solving dispute among spouse. The mediation centre allows the settlement based on the preference of both the parties and gives solution rather than binding judgements. Opting for mediation also reduces the burden of the court. The divorcing couple, after undergoing mediation may strive to give another chance to their relationships or sometimes opt to file divorce. However, the law itself states that the parties to divorce must undergo mediation before appearing in the court. Section 9 of the Family Court Act,1984 makes it mandatory for the spouse to opt for mediation before going to the court. Therefore, mediation is necessary for all the people opting for divorce.


[1]Brian James, Mediate India , what is Divorce Mediation?, (June 29,2020), https://www.mediate.com/articles/jamesb1.cfm

[2]Emily Doskow, DivorceNet, The Stages of Divorce Mediation, (June 29, 2020), https://www.divorcenet.com/resources/divorce/divorce-mediation/the-stages-mediation.htm

[3] (2015) 3 AIR Kant R 363

[4] AIR 2013 SC 2176

[5]AIR 2010 (8) SCC 24

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Author

Rangarajan R
Student - SASTRA Deemed to be University