mediation in divorce

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Mediation In Divorce

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Mediation In Divorce

The Concept & its efficacy of Alternative DisputeResolution:“It is the spirit and not the form of law that keeps thejustice alive.” LJ Earl Warren. The concept of ConflictManagement through Alternative Dispute Resolution(ADR) has introduced a new mechanism of disputeresolution that is non adversarial. A dispute is basically‘lis inter partes’ and the justice dispensation system in India has found an alternative toAdversarial litigation in the form of ADR mechanism.

New methods of dispute resolution such as ADR facilitate parties to deal with the underlyingissues in dispute in a more costeffective manner and with increased efficacy. In addition,these processes have the advantage of providing parties with the opportunity to reducehostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in apeaceful manner, and achieve a greater sense of justice in each individual case. The resolutionof disputes takes place usually in private and is more viable, economic, and efficient. ADR isgenerally classified into at least four types: negotiation, mediation, collaborative law, andarbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposesit can be regarded as a form of mediation

Need Of ADR In India:The system of dispensing justice in India has come under great stress for several reasonsmainly because of the huge pendency of cases in courts. In India, the number of cases filed inthe courts has shown a tremendous increase in recent years resulting in pendency and delaysunderlining the need for alternative dispute resolution methods. It is in this context that aResolution was adopted by the Chief Ministers and the Chief Justices of States in a conferenceheld in New Delhi on 4th December 1993 under the chairmanship of the then Prime Ministerand presided over by Chief Justice Of India. It said: "The Chief Ministers and Chief Justiceswere of the opinion that Courts were not in a position to bear the entire burden of justicesystem and that a number of disputes lent themselves to resolution by alternative modes suchas arbitration, mediation and negotiation. They emphasized the desirability of disputantstaking advantage of alternative dispute resolution which provided procedural flexibility, savedvaluable time and money and avoided the stress of a conventional trial".

In a developing country like India with major economic reforms under way within theframework of the rule of law, strategies for swifter resolution of disputes for lessening theburden on the courts and to provide means for expeditious resolution of disputes, there is nobetter option but to strive to develop alternative modes of dispute resolution (ADR) byestablishing facilities for providing settlement of disputes through arbitration, conciliation,mediation and negotiation.

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Alternative dispute resolution (ADR) (also known as external dispute resolution in somecountries, such as Australia) includes dispute resolution processes and techniques that act as ameans for disagreeing parties to come to an agreement short of litigation. ADR is generallyclassified into at least four types: arbitration, conciliation, negotiation, mediation.

Alternative dispute resolution in India is not new and it was in existence even under theprevious Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enactedto accommodate the harmonisation mandates of UNCITRAL Model. To streamline the Indianlegal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has alsobeen amended and section 89 has been introduced. Section 89 (1) of CPC provides an optionfor the settlement of disputes outside the court. It provides that where it appears to the courtthat there exist elements, which may be acceptable to the parties, the court may formulate theterms of a possible settlement and refer the same for arbitration, conciliation, mediation orjudicial settlement.

Due to extremely slow judicial process, there has been a big thrust on Alternate DisputeResolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairlystandard western approach towards ADR, the Lok Adalat system constituted under NationalLegal Services Authority Act, 1987 is a uniquely Indian approach.

What Is Mediation?Mediation is not something new to India. Centuries before the British arrived, India hadutilized a system called the Panchayat system, whereby respected village elders assisted inresolving community disputes. Such traditional mediation continues to be utilized even todayin villages. Also, in preBritish India, mediation was popular among businessmen. Impartialand respected businessmen called Mahajans were requested by business association membersto resolve disputes using an informal procedure, which combined mediation and arbitration.

Another form of early dispute resolution, used by one tribe to this day, is the use of panchas,or wise persons to resolve tribal disputes. Here, disputing members of a tribe meet with apancha to present their grievances and to attempt to work out a settlement. If that isunsuccessful, the dispute is submitted to a public forum attended by all interested members ofthe tribe. After considering the claims, defences, and interests of the tribe in great detail, thepancha again attempts to settle the dispute. If settlement is not possible, the pancha renders adecision that is binding upon the parties. The pancha's decision is made in accordance with thetribal law as well as the longrange interests of the tribe in maintaining harmony andprosperity. All proceedings are oral; no record is made of the proceedings or the outcome.Despite the lack of legal authority or sanctions, such mediation processes were regularly usedand commonly accepted by Indian disputants.

Mediation bears a striking resemblance, in some respects, to the ancient dispute resolutionprocesses. In mediation the parties are encouraged to participate directly in the process. Theexpanded framework of discussion in mediation consists of both the applicable law and theunderlying interests of the parties.

The mediator, an expert in the process of dispute resolution, controls the proceedings, muchlike a tribal chief serving in the role of peacemaker. But under the ancient methods ifmediation failed, the same person was authorized to render a binding decision. In India, whilejudges have been quick to recognize increased use of mediation as a helpful mechanism forreducing case backlogs and delays, Indian lawyers have not rushed to embrace mediation. As



with American lawyers in the early 1980's, Indian lawyers are conservative. They do not likechange and are reluctant to expose their clients to the uncertain risks of an unknown ADRprocess. Also, understandably, Indian lawyers view mediation as potentially depriving them ofincome by settling cases prematurely and thereby obviating legal fees that would otherwise beearned. The same has been true for American lawyers during the growth of mediation in theUS over the last twenty (20) years. In the first place, by their early acceptance and use ofmediation, lawyers became not only the best trained and most qualified mediators(incorporating their mediator work into their law practices), but the lawyers who did notbecome mediators became the gatekeepers for mediation, selecting over 80% of the cases thatare mediated and choosing the mediators for such cases.

Mediation is an informal dispute settlement process run by a trained third party, called amediator. Mediation is intended to bring two parties together to clear up misunderstandings,find out concerns, and reach a resolution. The process is voluntary. During the mediation, eachside will present its view of the issue, and the mediator will work with each side to attempt towork out a settlement. At the end of the process, the mediator can present his or her findingsand present a potential solution to the issue. The mediation process, unlike arbitration, is nonbinding; that is, the mediator does not impose a decision on the parties, but he/she attempts topresent a solution that is acceptable to both parties.

Mediation can be used in divorces, real estate, and labour bargaining, and in other disputes, inan attempt to avoid taking a case to court.

Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way ofresolving disputes between two or more parties with concrete effects. Typically, a third party,the mediator assists the parties to negotiate a settlement. Disputants may mediate disputes in avariety of domains, such as commercial, legal, diplomatic, workplace, community and familymatters. The mediator acts as a neutral third party and facilitates rather than directs theprocess. Mediators use various techniques to open, or improve, dialogue between disputants,aiming to help the parties reach an agreement. Much depends on the mediator's skill andtraining. As the practice gained popularity, training programs, certifications and licensingfollowed, producing trained, professional mediators committed to the discipline.

The Advantages Of MediationThere are various advantages of mediation which can be used in divorces, real estate, andlabour bargaining, and in other disputes, in an attempt to avoid taking a case to court. Some ofthem are cost, confidentiality, control, mutuality, compliance and support.

Costwhile a mediator may charge a fee comparable to that of an attorney, the mediationprocess generally takes much less time than moving a case through standard legal channels.While a case in the hands of a lawyer or a court may take months or years to resolve,mediation usually achieves a resolution in a matter of hours. Taking less time meansexpending less money on hourly fees and costs. Confidentiality—while court hearings arepublic, mediation remains strictly confidential. No one but the parties to the dispute and themediators know what happened. Confidentiality in mediation has such importance that in mostcases the legal system cannot force a mediator to testify in court as to the content or progressof mediation. Many mediators destroy their notes taken during a mediation once thatmediation has finished. The only exceptions to such strict confidentiality usually involve childabuse or actual or threatened



Control—Mediation increases the control the parties have over the resolution. In a court case,the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jurycannot legally provide solutions that emerge in mediation. Thus, mediation is more likely toproduce a result that is mutually agreeable for the parties.

Compliance—because the result is attained by the parties working together and is mutuallyagreeable, compliance with the mediated agreement is usually high. This further reduces costs,because the parties do not have to employ an attorney to force compliance with the agreement.The mediated agreement is, however, fully enforceable in a court of law.

Mutuality—Parties to mediation are typically ready to work mutually toward a resolution. Inmost circumstances the mere fact that parties are willing to mediate means that they are readyto "move" their position. The parties thus are more amenable to understanding the other party'sside and work on underlying issues to the dispute. This has the added benefit of oftenpreserving the relationship the parties had before the dispute.

Support—Mediators are trained in working with difficult situations. The mediator acts as aneutral facilitator and guides the parties through the process.

Process Of MediationBut this process is informal and not binding and the parties may deviate from this process andfollow some other process of their own choice.

The mediator begins by welcoming the parties and introducing himself/herself. The mediatorthen outlines the process and the roles of the mediator, the parties, and attorneys (if present).The mediator ends the introduction by explaining the ground rules for the process. Themediator then asks for statements from each party. Both parties have an opportunity to telltheir story about what happened, from their viewpoint. Often, these stories are emotional. Themediator may ask clarifying questions, but typically the parties do not question each other.After both parties have spoken, the mediator may ask more questions, both to clarify the issuesand to provide the other party with greater understanding. At this point, the mediator may askthe parties to (separate for the purpose of discussion). The mediator talks with each party,proposing solutions, trying out scenarios, trying to get commitment to a settlement by bothparties. The mediator goes back and forth between the parties during this time, clearing upmisunderstandings, and carrying information, proposals, and points of agreement.

Mediation In DivorceNowadays, for significant portion of adult and youngsters marital and family relations areneither straightforward nor stable. Within the US, in line with the recent researches 13.8million children, twenty five% of those underneath the age of eighteen, are living with onlyone parent and another 5 million kids in two folks homes live with a biological parent and astep parent. And it's a clear estimation that 0.5 of the marriages can end up in divorce. Peopleprefer to file suits in courts for divorce etc. and it takes a lot of time as many cases are pendingin the courts in India, a country where everyday cases of domestic violence and quarrels areseen in every 2 people out of 10.Therefore, instead of wasting so much of time by goingthrough court formal proceedings a person can go to a mediator for settling disputes. Thesedays, as mediation is very common, some states of the US have quite constant and broad useof divorce mediation e.g. Taxes and Connecticut. To save time and energy, it is necessary thatalternative like mediation should be adopted in large number which is the best method.



There are higher ways to realize settlement. Divorcing couples should consider their choices ina constructive and progressive manner starting with the least hostile approach, divorcemediation. Because the family problems are changing into intensive, likewise divorce hasbecome thus terribly common. And therefore every concerned one is in the hunt for aneffective a approachout. A divorcing couples knows that divorce simply does not finisheverything concerning a wedding, though it ends the legal contract between a husband and awife but, it shatters the household that was based on that marriage. It conjointly cannot breakthe link that the youngsters of the marriage create simply by existing. Mediation, conjointlyknown as “different dispute resolution" may be a method by which an impartial third person(generally additional than one person) helps two discordant parties to resolve dispute through amutual concession and faceface negotiation. A mediator could be a trained skilled who doesnot force rather assists the parties in their own negotiation while not creating choices for theparties. A mediator rather facilitate the parties understand what is happening to them andencourages them to barter in sensible faith that brings fruitful leads to future.

Mediators most usually are appointed by the court, typically with agreement by the lawyers forboth sides. Mediators come back in many varieties. A number of them are professionalpersonal mediators, many of whom are lawyers. They eliminate the requirement for a jury trialregarding ninety percent of the time. Others are volunteer mediators and several of them areretired attorneys or non lawyers trained by Dispute Resolution Services. It's a method in whichthe parties and their attorneys agree to resolve all issues in an environment of cooperation,honesty and integrity without being engaged in adversarial techniques in or out of court.

The final benefits and benefits argued to be seen as a result of divorce mediationembody:1. Each the parties are liberated to air their concern.2. A neutral person assists each the parties.3. The approach is always nonadversarial.4. Both the parties have management over the outcome.5. The prices are cut to a nice extent.6. Nobody's privacy is hurt.7. A settlement agreement per the family's wants8. Avoidance of litigation.

Divorce mediation might not be acceptable for both the spouses undergoing the process.It has several disadvantages still:1. The opposite spouse may not cooperate and you can't force him/her.2. The opposite party could try to show dominance over you and here a court lawyer can solelyoffset the imbalance.3. The opposite spouse may frighten or threaten you, and once a spouse is afraid of personalsafety, the participation interest drastically drops down.4. Others argue that the decrease in the value of mediation and the upper fee of lawyers is dueto their high expertise in the sector and solely they can higher predict the appropriate outcomeof the case.

Therefore, every divorcing couples should try to settle down their marital issues withinthemselves. If they cannot go that manner a minimum of they need to not hide anything fromone another and should bear the mediation process resulting in a conclusion. In circumstances,things goes out of hand and both the spouses cannot reach to conformity, the traditionaladversarial approach might be a final resort (bearing the prices in mind).



Despite substantial support for divorce mediation disadvantages do exist. Divorce mediationmight not be acceptable for both the spouses undergoing the process. It has severaldisadvantages such as the opposite spouse may not cooperate and you can't force him/her. Theopposite party could try to show dominance over you and here a court lawyer can solely offsetthe imbalance.The opposite spouse may frighten or threaten you, and once a spouse is afraid of personalsafety, the participation interest drastically drops down.Others argue that the decrease in the value of mediation and the upper fee of lawyers is due totheir high expertise in the sector and solely they can higher predict the appropriate outcome ofthe case.

The family court law also empowers the family court to consider alternative modes ofreconciliation between couples, including mediation, which could result in couples gettingback together or parting ways amicably by mutual consent. If the mediation results in thecouple dropping their acrimonious charges and if in the meantime six months have elapsed,then the family court cannot insist on waiting another six months before granting divorce bymutual consent.

Initiatives At National Level To Increase Mediation As A Mode Of Settlement1. New Mediation Centers Relieve Courts As Cases Increase In KashmirAs population, education and awareness of rights increase throughout India, so does thenumber of court cases here. To help assuage the backlog of cases, the government isestablishing mediation centers, a phenomenon that has recently spread to the state of Jammuand Kashmir. SRINAGAR, KASHMIR, INDIA is sitting under the shadow of a giganticchinar tree in the court complex in Lal Chowk, a downtown city square, a woman in her mid30s anxiously awaits her turn at one of Kashmir’s new mediation centers. The woman, whoselast name is Begum, is accompanied by her stepfather, who is also her paternal uncle. Says shethey are waiting for their village head, who has volunteered to speak at the mediation on herbehalf. In the meantime, Begum’s husband, the other party in the dispute, enters the mediationcenter to give his side of the story. As he discusses their marital issues with the mediator, hiswife barges into the room and interrupts him. Sofiya Muzamil, the mediator, asks her to stop.“This is a routine affair here,” says Muzamil, who is also an attorney. “Often parties in disputeengage in verbal brawl. Sometimes they turn violent and same leads to a scuffle between them.In latter case, police is to be called in. ”Muzamil says that after both parties meet with themediator, there are joint and individual followups.

“Various sessions – joint and individual – are held to resolve matter amicably,” she says.“Feasible options are explored.”

The Begums are at the mediation center to discuss their marriage. They were married 12 yearsago, and the husband is angry that they still don’t have any children, Muzamil says. “Herhusband pleads it as one of the grounds for divorce, whereas Begum says her motherinlawilltreats and harasses her,” Muzamil says. Rebutting these allegations, the husband retorts thathis wife is shorttempered, which leads to frequent disputes.

Abdul Rehman, the village head here to speak on behalf of the wife, tells the mediator that thecase came before a local village committee a few years ago. The committee asked the husbandto pay her five lakh rupees ($9,100) as compensation because he wanted to divorce her.



“But he didn’t agree,” Rehman says. “He said that he can pay one and half lakh rupees only,but that wasn’t acceptable to us. I wanted the same to be a deterrent for others. Then a casewas filed in court, where it lingered for years.”

He says that they eventually opted for mediation to hasten the resolution process. “During thistime around, we came across mediation center, which is believed to lead towards speedyjustice,” he says. “We expect early disposal of [our] case.”

The mediator says that she has explored various aspects of the dispute and listened to bothsides.

“The matter isn’t finally resolved, but all factors are heading towards their divorce,” Muzamilsays.

Citizens with more education and awareness of their rights are turning to the state’s newlyoperational mediation centers to hasten the judicial process. Because of a backlog of cases,courts send those concerning issues such as property and divorce to the rising number ofcenters. Mediators say the overall response of citizens has been favourable, though somelawyers call the process fruitless.

Although conception of the mediation centers in the state began in 2007, the first ones becameoperational last year. There are now 14 district mediation centers in the state, according to theannual report of the Mediation Monitoring Committee, which is responsible for theirfunctioning.

2. Delhi Mediation CenterWith an alarming increase in the number of couples heading for divorce in the Capital, judgeshave now stood up to save the sanctity of marriage. From advising the couple to give theirmarriage a second chance to making them understand the practicality of life, the judges aredoing everything that can change the mind of the couple heading for separation.

The concept of mediation centres is rapidly gaining popularity, and with a success rate of 63%,this new role of the gravelhammering judges has earned them accolades from everywhere.According to recent court figures, more than 1, 36,000 marriages take place every year whilesome 8,0009,000 divorce cases are filed each year. In fact, an average of 10 cases is filed perday in just one court. However, the new Additional Dispute Resolution (ADR) method hasgiven the judiciary a more humane approach in resolving the matter. Sample this: A couplewhich had filed for a divorce recently went back to give their marriage a second chance afterattending sessions in the mediation centres. "The main problem with the couple was acommunication gap as both were working. So, when they approached us, all we told them wasto talk, be more expressive and resolve their issues over a cup of coffee. It worked for themand within 5 sittings, they decided to give it another shot," said a mediator judge who refusedto be named.

Earlier, this wasn't the role of mediation centres. The case was generally forwarded to the civilcourts if the couple was not ready to reconcile. However, the new ADR method involves anenhanced role of the judge. The centres have taken the help of ADJs to do the job of themediators. In the mediation centre at Gole market, which comes under Delhi Legal ServicesAuthority, there are five district and sessions judges, who meet couples everyday between 8amto 7pm. similar mediation centres can be found in Tis Hazari and Karkardoma. "The role of the



judge in these mediation centres is not only to mediate between the couples but also tounderstand the dispute between the two parties and come up with an amicable solution,"Sanjay Sharma, the project officer of DLSA, told TOI.

"Mediation in the context of matrimonial disputes is different in form and content fromcommercial and property disputes. So we give advice on things like motivation, sentiments,social compulsions, personal liabilities, and responsibility to solve the matter," said a mediatorjudge on the condition of anonymity.

The latest figures at the Tis Hazari mediation centre are encouraging. The success rate ofsettled cases in Tis Hazari is as high as 63% while at Karkardoma it's close to 60%.

"Out of 7,473 cases handled by the mediation centre in the past three years, 7,264 have beendisposed of by now. About 4,605 cases have been settled successfully," informed Kapoor, thejudge in charge of the mediation centre in Tis Hazari courts.

"Our main job is not to tell them what to do, but to mediate between the two parties. Wemotivate these couples to sort out their differences and the judges here try to talk to themabout issues like personal liabilities and responsibilities to solve the matter," Kapoor added.

The judges at the mediation centres believe that the mindsets of the people have changed overthe years. While earlier getting a divorce was considered the last resort for a couple, now theyconsider it their first option.

Mediation In India As Compared To Mediation In United States Of AmericaIn the United States, lawyers and the local and state bar associations, as well as the AmericanBar Association and the Federal Bar Association, were as enthusiastic as the judges in theirpromotion and utilization of mediation. American lawyers understood that the legal systemwas overloaded and on the point of collapse from the courts being wrongly utilized fordisputes that could be better and more efficiently handled by mediation and other ADRprocedures. By the mid1980's, lawyers and State Bar Associations had professionalizedmediation in the US, by developing mediator training standards, by providing lawyer trainingin mediation and by prescribing ethical standards for lawyers when acting as mediators andwhen acting as advocates in mediation. As a result, trained lawyer mediators made mediation asubstantial part of their law practice. By responding positively and emphatically to incorporatemediation as a welcome and useful ADR tool in the American legal system, lawyers have notlost business to mediation, but have rather become ensconced as mediators and as thegatekeepers for mediation in the US legal systems. In the US, although lawyers initially feltthreatened by mediation and resisted it as an unwanted change in the status quo, the lawyersquickly realized that mediation was just another tool in their lawyer tool bag.

In India, while judges have been quick to recognize increased use of mediation as a helpfulmechanism for reducing case backlogs and delays, Indian lawyers have not rushed to embracemediation. As with American lawyers in the early 1980's, Indian lawyers are conservative.They do not like change and are reluctant to expose their clients to the uncertain risks of anunknown ADR process. Also, understandably, Indian lawyers view mediation as potentiallydepriving them of income by settling cases prematurely and thereby obviating legal fees thatwould otherwise be earned. The same has been true for American lawyers during the growthof mediation in the US over the last twenty (20) years. In the first place, by their earlyacceptance and use of mediation, lawyers became not only the best trained and most qualified



mediators (incorporating their mediator work into their law practices), but the lawyers who didnot become mediators became the gatekeepers for mediation, selecting over 80% of the casesthat are mediated and choosing the mediators for such cases.

Private litigants, too, may harbour anxiety about mediation as an alternative to the courtsystem. Fearful of exploitation, distrustful of private proceedings, comforted by the familiarityof the court system, insecure about making decisions about their own interests, or interested invexatious litigation or in delaying the case for economic reasons, some litigants may prefer thelawyerdominated, public, formal, and evaluative judicial process.

These impressions are inaccurate for a variety of reasons. First, mediation will not frustrate thepreferences of such litigants; indeed, their right to trial will be preserved. An effectivemediation process can quickly allay these fears. Litigants involved in the process are muchless likely to be exploited. They will quickly understand that the mediator has no power orsocial control over them or their resolution of the dispute. Second, effective facilitators willgain their trust over time. Third, if the parties still feel the need for an evaluation of the legalissues, the mediation can be accordingly designed to deliver that service. At times, litigantscan better save face with members of their family, community, or organization, if they can castresponsibility for the result on a neutral third party, and for this group, a strong evaluativeprocess may be appropriate. While judges and the courts provided the initial impetus towardmediation in the United States, it was the lawyers' and law schools' acceptance of the court'schallenge to find better ways of resolving disputes that lead to rapid and widespreadacceptance of mediation in the United States. Globally, however, the explosion of mediation inEurope and in Asia is being spearheaded by corporations, as multinational corporations("MNC's") seek quicker, cheaper and less disruptive means for settling internal employer,management and shareholder disputes and external commercial disputes with trade anddistribution partners around the world. At the first annual European Business MediationCongress convened October 2123, 2004 by CPR Institute of Dispute Resolution, 140attendees (including representatives from most of the world's largest law firms) responded to aSurvey on European Business Mediation indicating that 60% viewed MNC's as necessarilyleading the charge in globalization of mediation, while, 25% viewed lawyers as the leaders,and only 7% viewed courts as the leaders in mediation on the international commercial scene.Now that major corporate clients have discovered mediation and are pushing for it, lawyerswho resist the increased use of mediation in India will likely lose credibility with existing orpotential MNC clientele. Once it is understood that mediation is intended to complement (notreplace) the judicial process, that it is highly adaptable to different contexts, and that expertisein India is already growing rapidly, the apprehensions may quickly dissipate.

The author can be reached at: [email protected]

mediation in divorce

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