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This article is written by Jaya Vats from Vivekananda Institute of Professional Studies, Delhi. In this article, the author discusses the ethicality and feasibility of the process of mediation in domestic violence cases.

Introduction

In the majority of cases, as argued, the court’s solution to domestic abuse is to refer it to mediation, because it is marital conflict. This particular argument is merely a representation of the public-private dichotomy that radical feminists have brought to light. The private domain, which is part of family ties, is not subject to public scrutiny. 

The primary cause of household violence against women-equations of dominance between men and women-is this immunity. Courts in India are often not equipped to tackle delicate cases, and more so for the victims. There is a power imbalance, a type of psychological coercion where the victim is often unable to face the abuser in the right way. Moreover, litigation is an expensive and time-consuming procedure – plaintiffs do not testify before the judge and seek successful justice more often than not. This is the sad condition of domestic violence victims in India and elsewhere.

Mediation is an important tool that can go a long way toward coping with such a dry situation. Not only is this method easier than litigation, but it also helps the parties to find a mutually beneficial solution. Mediation is defined as an informal process in which a neutral third party with no power to enforce a resolution encourages the parties to seek to find a mutually satisfactory settlement. As in the case of litigation, the parties are not burdened by the formality of court proceedings and may mediate in a secure and respectful atmosphere where they are not in a rush.

Ethical nature of mediation

The use of mediation in the area of domestic violence is a contentious topic due to the controversy about the implications of not penalizing the victim in this situation. Some claim that mediation is diluting the idea that domestic violence is a crime.Instead of being punished, the offender gets away, unrecognised. When the abuser is permitted to engage in the conciliation phase, it can be inferred that there are no negative repercussions for his or her actions, so the abuser can escape accountability and the victim will feel partly blamed. 

The point is that counselling can make domestic violence a trivial crime and the perpetrator can buy the victim’s freedom to continue abuse against the victim. While the other side claims that, in the meantime, when the perpetrator acknowledges the execution of such a crime, the mindset itself decreases the victim’s sense of self-denial. Mediation is also victim-centric rather than society-centric because it avoids punishing the offender solely to create dissuasion in society. Therefore, arbitration by mediation between the victim and the defendant changes the paradigm of criminal law by placing the victim at the focal point rather than at the edge of the entire operation. 

The victim is replaced by the State to resolve the dispute and impose conditions on the victim’s will, instead of the best possible solution the State considers to be a generic analysis. The state has spent a lot of years identifying and criminalizing these violations and discrimination against women, while women should be given a choice because the offence is against them and they are at the mercy of this criminal act. 

Throughout these cases, it was found that the victims were not initially identified or protested about the concern that they were shamed throughout society, provided that the legal process was not secret and the party’s identity was exposed which contributed to a worse family situation. The perpetrators are not readily litigating because of a fear of being exposed to society and the act of abuse in the family is highly dissimulated. This is not known and accepted the extent and severity of this crime, as this victim seeks to minimize more family tensions by disguising the crime. In this respect, ethical mediation can be easily resolved in the key confidentiality issue and mediators should be professionally qualified to uphold the balance of power in such situations. 

The basic necessity of ethical mediation is regulated by minimum universal principles, which enforce a suitable mediation case during the preparation of the mediator. The mediators must abide by the basic responsibilities to meet the mediation objectives. Three basic concepts of mediation exist impartiality, determination of parties’ self-determination, and case confidentiality. Self-determination and the distinction between mediation and other alternative conflict resolution mechanisms is the central concept of mediation. Fixing the fundamental principles of self-determination in the mediation process means that the parties are in a position to make agreements that are mutual, well educated, and unpressured. Mediating should not occur if a mediator reasonably believes that, because of the lack of security, capacity, or an unfair influence, a participant will be unavailable or not willing to participate.

Feasibility of mediation

It is well known that mediation in cases of domestic abuse should not be compulsory, as illustrated in Article 48 of the Council of Europe Convention on the Prevention and Combat of Violence against Women and Domestic Violence, to prevent forced alternative conflict resolution to enable the courts to take appropriate action where necessary. While it is debated around the world that matters relating to the family can be resolved by mediation and can also help to settle family conflicts without further breaking the family bond.

The problem of power inequality must first be addressed by the mediator to put the parties on an equal footing. When the victim is in a position to assert her rights and to lay down her demands without losing any of her rights to bargain for what she has already been covered or given under the law. The mediator should understand that the survivor is not silenced by the perpetrator when mediating to settle. Self-determination of the victim is important if the healing process is to be conducted voluntarily and not under the coercion of the perpetrator. When there is still a power gap even in the presence of a mediator, then the mediator will interrupt the cycle in between and refer it to a trail.

Mediation has resulted in a greater reduction in physical, verbal, and emotional violence than the contested settlement. Unlike conventional litigation, mediation offers guidance on future partnerships and creates a positive, encouraging atmosphere for women and encourages them to build safety tools. Those are the more healing processes. Effective mediators are qualified to balance the power between the participants. Nonetheless, dominant literature in the field of international mediation argues that mediation is the preferred method for conflicts, particularly when there are broad differences in power.

Benefits of the mediation process

It should be noted that domestic abuse at home is not just one of the parents who suffer the ill effects of intimate partner violence. The offspring of both individuals are still suffering. Once and then, they suffer more than their mother (or father) because they are helpless in a tumultuous world. There are instances of guardians grabbing their youngsters at universal spots. In such cases, where there is a range of abusive behaviour at home against the parent, the question is whether or not such a debate is being held. 

It is argued that, without careful household screening in a remote country, necessary defences, and trained middle people, the offender may force the other parent to agree to an obstructive arrangement. Specialists claim that without these legal and political remedies, intervention may end up being the most usable option to ensure the stability and return of the infant, or to guarantee access to both guardians. Intercession can balance the negatives in question and result in proper, generally satisfying, and secure co-parenting access. 

The contentious and expensively contested existence of the conflict resolution process has given way to less divisive methods of dispute settlement, i.e. mediation. Nonetheless, when violence is identified to the intimate partner, it is inappropriate to ignore the collapse of the violence exposed infant, and its protection is paramount. The connection of the abused child with the parents can not be balanced. 

Mediation may include a child’s maturity, an expert, and a professional mediator, a special protocol tailored to the child’s needs. Mediation must be for the good of the child and be in a position to do what is helpful to the child. Mediation should not be performed if the child is unable to grasp the intent and meaning of the mediation as a result of insufficient psychological development. There are many approaches to developing court mediation services that resolve the problem of domestic abuse. Mediation is not recommended if the violence is continuing and it should be understood that not all cases are suitable for mediation. Given the criticality of children exposed, appropriate assessment, documentation, and judgments by mediators about whether and to what degree this is necessary to be carried out and must be judged on a case-by-case basis.

The mediation process in India

In 2002, the Code of Civil Procedure (CPC) was revised to add Section 89 to include mediation as an Alternative Dispute Resolution (ADR) method. According to this Section, the court may determine whether or not a particular case should be referred to mediation, arbitration, or judicial settlement through Lok Adalats for an amicable settlement. It is referred to as court-referred mediation. In the event of a failure to do so, proceedings shall continue; on the other hand, if it is satisfactory, a report shall be sent to the court and the case shall be settled. It is also known as pre-litigation mediation, which applies specifically to parties who seek mediation without intervening or appealing to the court.

In India, the issue of domestic abuse is settled in court in compliance with due process, and this is a criminal offence under Section 498A of the IPC. Mediation between the parties has, however, always been used to fix the conflicts amicably. The mediation in the settlement of conflicts is referred to in Section 30 of the Arbitration & Conciliation Act, while Section 89 of the CPC refers to mediation to the tribunal, which deals with “political.” Domestic violence in Section 498-A of the IPC is a non-compoundable crime and no compromise is allowed. Nevertheless, the courts have taken a different approach. 

The Supreme Court in the case of K. Srinivas Rao v. D.A. Deepa ruled that “… though an offence punishable under Section 498—Indian Penal Code is not compoundable, in cases where the parties are willing and where it appears to the criminal court that there are elements of the settlement, the parties should be directed to explore the possibility of settlement via mediation.” 

Also in the case of T. Vineed v. Manju S. Nair, the High Court of Kerala held that it was the responsibility of the court to the public to vigorously pursue alternative conflict resolution. In other words, it is not just the constitutional duty of the court to refer to mediation cases. This enforced responsibility provides the parties with different means of access to justice. Thus, the pressure on the subordinate and high courts is that. Recently, in May 2019, in Praveen Singh Ramakant Bhadauriya vs. Neelam Praveen Singh Bhadauriya, the Supreme Court, after granting a divorce, allowed the parties to quash cases under the Domestic Violence Act. It’s in Ramgopal and Anr. vs. M.P. Government. And Anr. urged the Law Commission of India and the Government of the Union to make such offences, like the IPC 498A, more cumbersome to reduce the burden on the courts and promote reconciliation. 

This shows that the Indian judiciary encourages mediation to address domestic violence issues. In that regard, the High Court of Bombay in Dr Jaya Sagade vs. the State of Maharashtra claimed that domestic abuse cases can be resolved without a court order. It also specified that if there is a possibility of recurrence of domestic abuse, the Domestic Incident Report (DIR) under Section 10(2) of the Domestic Violence Act must be completed before therapy starts. The court set aside the contested circular but, to protect the abused woman, stated that mediation would be carried out on the voluntary and informed consent of the woman and that there would be no pressure to settle her claim.

The Apex Court of India in the case of Afcons InfrastructureLtd. v. Cherian Varkey construction. (P)Ltd. addressed the enforceability of mediation where it is held that only the mediation agreement reached after it has been referred for mediation by the courts is enforceable when the court takes notes on agreements and disposal records. The enforceability of pre-conflict mediation is still not certain and the rules for mediation in court cases have not yet been established. There are no specific guidelines for mediation implemented uniformly throughout the world. In Ravi Aggarwal v. Anil Jagota, the High Court of Delhi finds that the parties to the mediation will not be bound by the settlement agreement if there is no record of the settlement in the case. There is no legal judgment as to how a non-compoundable violation can be settled by mediation and its enforceability.

Yet in these situations, the mediation is vociferously opposed. Courses become more and more oblivious and often unaware of the existence of domestic abuse. The issue of how mediators will deal with these situations needs to be addressed. The expertise and skills of the mediators to properly screen and manage domestic abuse cases have raised concerns. The mediators are burdened with a large number of cases which must be resolved in a few years. There is a shortage of proper experience and professional preparation to discuss domestic violence problems in the sense of problematic domestic violence. 

There are four key reasons for the regulation of mediation: first, the mediators should be trained and this will reduce costs and time wasted on fraud mediation practices; second, the promotion of the widespread usage of mediation and awareness-raising in the mediation society; third, the use of the regulatory system to improve the standard of mediation through mediation training; and fourth, mediation training; Appropriate instruction should be offered for various types of mediators specialized in specific areas of conflict resolution. Proper certification of mediators to resolve domestic violence and family law issues would make the process simple, reliable, and cost-effective.

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Mediation in different countries

Mediation can involve representatives of victims to balance bargaining power and eliminate coercion and representation. It is also critical that the courts take security measures to protect all mediation participants. Mediators should pay particular attention to the physical configuration of the house, internal alarm systems, and access to security staff. When there is a serious failure to comply with the laws of mediation, provision should be made for termination of mediation. There should be no legal ramifications if termination or mediation is attempted or is deemed to have failed.

Most Courts in the USA have specific criteria for the inclusion/exclusion of cases of domestic abuse in mediation. Some of these methods or parameters are discussed briefly. These approaches, if properly implemented in India, may help to address the challenges of mediation and domestic violence.

Courts in Pennsylvania can allow the parties to attend mediation orientation sessions if all parties agree to mediation. Delaware shall stipulate advocacy by a lawyer with the consent of the abusive spouse. Other states, including Alabama, Hawaii, and Tennessee, insist on specially trained mediators, except for consent.

There is a tradition in Alaska of a multi-tiered assessment procedure. A comprehensive set of guidelines for mediation regarding domestic abuse is currently in place. In the case of an order of defence, the court can not order mediation. When domestic abuse is suspected but there is no security order, custody mediation is only allowed if the victim agrees to mediation. All parties have the right to consent to mediation, and such a decision does not affect other decisions of the court.

For Texas, if there is a request for exclusion on the grounds of domestic abuse, however, the court overrules it and agrees to mediation, the judge must specify in the order that interaction between the two parties is prevented. California mandates separate intake sessions and, upon request, the victim and batter are interviewed in different rooms and mediated on separate days and times. Florida, Alaska, Hawaii, Tennessee, and several local Courts in California require victims of domestic violence to bring help to therapy to assist them. Oregon and Texas allow mediators to enforce safety protocols to reduce the possibility of bullying or abuse. There are, therefore, some special rules on the structure of mediation. 

It is done to ensure that no unwarranted disputes will arise between the parties during, during, or after the mediation process. Judicial preparation and mediator preparation is important for people who are assigned to cases where it is perceived that there is a general lack of experience to deal with these complicated, delicate, and potentially dangerous circumstances. It makes mediation an inappropriate operation, or even potentially harmful.

Conclusion

Criminal counselling can not be ignored as a necessary aspect of current criminal justice. The report effectively alters the strategies of criminal cases, regardless of whether positive or negative, both the defended and the plaintiff’s fundamental liberties. The need for transparency, consistency, and accountability in every criminal justice system to allow it to be adequate is unquestionable. The outcome and process of a criminal action depend very strongly on these issues. The party should not be subject to mediation, or any other alternative dispute settlement methods, but settlement enforcement should standardize. It is, after all, the victim who, at the end of the day, will have to live with the conclusion that has arrived. This will, therefore, be up to them to agree on the approach to be used to draw a specific conclusion.

References 


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