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This article is written by Sneha Singh, from Dr. Ram Manohar Lohia National Law University. The article tells about the role mediation plays when it comes to family law disputes and why the court suggests people to first go for mediation in family law disputes.

Introduction

Mediation has turned out to be a good option when it comes to family law disputes. The disputes which arise in a family are very crucial and they need to be taken care of with patience and also reach a solution where both parties can benefit. It also solves the disputes faster than it happens in court.

Recently, a situation had come up where my house helper had to file for a case of divorce and alimony. The court referred this matter to take the recourse of mediation. She was very unsure regarding it but later the dispute was resolved and they agreed to a settlement. The process turned out to be very helpful for her and she was very satisfied.

Meditation proves to be beneficial for family disputes. But how does mediation exactly work and what are the benefits attached to it? What is the role of a lawyer and a mediator? These are the basics that one needs to understand to get a better understanding of how mediation functions in family law.

Kinds of disputes arising in a family

There are various kinds of disputes which happen in a family and such disputes are different for every family, ranging from a big joint family to a small nuclear family. The various disputes which occur can be listed as follows:

  • Divorce and separation issues

The issues relating to divorce is one of the major reasons for dispute in a family. There can be various circumstances in which a couple decides to break up like work-related stress, stress due to in-laws, children related issues, financial instability, etc.

  • Inheritance

Who will be the one to take over the property? This question is the basic reason for issues relating to inheritance and division of property. There is a fight over property and business between siblings or the children develop conflicts with their parents. This also happens when there is a family business and the siblings take care of it. Conflict of opinions between them becomes a common issue. 

  • Post-divorce issues

After the divorce between partners, there are still certain matters to be taken care of by them- be it in relation to custody of children, financial matters, parenting arrangements, and any other matter.

  • Parenting

Parenting is also a major cause of dispute in families. The parents argue over how the children should be taken care of and sometimes it becomes a big issue.

  • Extended family concerns

The big joint family in which different people have different opinions and these small differences sometimes lead to a big quarrel which is difficult to resolve.

  • Eldercare

Often disputes arise between siblings as to who would take care of the elders. And if one of them is responsible to take care of the parents then the others feel that the parents have favouritism towards that sibling which is further a reason for conflict.

Matters related to family disputes

There are various matters which can lead to a dispute in a family. The conflict happens between couples, between siblings, with parents, and so on. There can be multiple reasons for disputes between couples for example they might have different opinions when it comes to taking any decision, when they have different jobs,  different ambitions and during that time they are unable to give time to each other, the children and household chores can also be a reason for issues, etc.

In the family, the women are held responsible to take care of all the household chores even if they are working women. In our country, the involvement of families is a lot more than other countries which lead to issues between the couples. There can be property conflicts between siblings and parents as well. So in this situation, mediation turns out to be a good idea to resolve these problems.

Mediation in case of domestic violence

The procedure for court- referred mediation is provided under Section 89 of the Civil Procedure Code. So, basically, it is applied for civil matters so how is it possible for domestic violence which is mentioned under Section 498-A of IPC to be referred for mediation?

Domestic Violence is a non-compoundable offence under Section 320 of the CrPC, so how can the Indian courts time and again refer it for mediation? The Supreme Court in 2013 by sanction gave the power to the courts to refer the cases mentioned under Section 498-A of IPC for mediation. For example-

In the case of Mohd. Mushtaq Ahmad v. State, the wife had filed a case of divorce against the husband along with an FIR under Sec. 498-A of IPC, when disputes arose between them after the birth of a girl child. The Karnataka High Court referred the matter for mediation and everything was resolved amicably. The wife decided to quash the FIR she had filed and the court allowed it in the exercise of its inherent powers to meet the ends of justice.

There are certain disadvantages attached to having mediation in domestic violence cases. Like-

  • The wrongdoer easily escapes without receiving the punishment and is set free to walk in society without truly being punished for his actions.
  • If a crime is committed the person who does so should be punished so that it acts as a deterrence for others and helps in decreasing the rate of crime in the society.

Mediation related to family disputes

In our society, in the earlier times, the trend was to settle the disputes among family members by sitting together and discussing it. At village level, the disputes were many times also referred to the panchayats where decision was taken after hearing both the sides. The mediation process also plays the same role where members of a family who are in a disagreement can try to solve their grievances by discussing it instead of going to a court. In family relations, peace and harmony between the members of the family is of paramount importance.

The family mediator tries to help the people reach a settlement to which both the parties agree, by encouraging communication. The family law system encourages mediation which can be done in various ways like using a family member or friend to help, informal general meeting or using a special mediation process covered under Australian Legislation The Family Law Act, 1975 known as Family Dispute Resolution in which a practitioner helps people resolve their dispute and he is not related directly to any of the parties. 

There are references of mediation/conciliation in family dispute resolution which are present in Family Courts Act, 1984, Civil Procedure Code, Hindu Marriage Act and the Legal Services Authorities Act, 1987 that gives a special status to Lok Adalats as it has been very effective in mediating family disputes.

Role of a lawyer in family mediation

  • Most of the time the parties are not well aware of the mediation process so the lawyers can guide their clients about the process because the clients have trust in them.
  • The lawyers can become a support system for their client and ensure that he gets justice.
  • The presence of a lawyer during the mediation process helps the client in taking a decision. Like the mediator may suggest various options during the process and the advocate can help the client to opt for the one which is in his best interest and can protect the client from being forced to follow any decision.
  • Sometimes the client may hesitate from asking the mediator if some terms are not clear to them then their lawyer can explain it to them and also help in preventing any miscommunication.
  • The one important role of the lawyer is also to draft the documents which are required during the procedure.
  • After the mediation process is over it can be a success or a failure. If the results are not in favour, the person has to start the litigation from the point it was referred to mediation and for that, a lawyer is needed. If it is a success then the client has to sign the settlement agreement which the clients hesitate to sign without referring it to their lawyer.
  • The lawyer also makes sure that the terms of the mediation settlement are executed properly.

Role of a mediator in family mediation

  • The main role of the mediator is to help parties so that they can communicate with each other and reach a  settlement.
  • It is also the mediator’s role to tell the parties about the mediation process, issues that are typically addressed, the principle that may be considered, etc.
  • The mediator has to ensure that both the parties are heard during the mediation process.                            
  • It is very important that the mediator is impartial while dealing with the matter. If there is a doubt in the mind of the mediator that he cannot remain impartial, he should withdraw and a new mediator should be appointed on his stead.
  • The mediator should maintain confidentiality and not disclose any of the details regarding the mediation process with anyone.                                    

Steps followed during the mediation process in a family law dispute

There are certain steps which are involved when it comes to the mediation process in a family law dispute. They are as follows:

  • Preparation

Before the mediation process begins, the mediator can meet the parties and guide them regarding the steps involved in the mediation process. He also clarifies the doubts and answers any related questions. This conversation is not necessary to be held face-to-face and can be held on the phone too.

  • Introduction    

First of all, there would be opening statements given by the mediator and he will elucidate his role as a mediator. The mediator will ask if both the parties agree to the process or not? If the parties agree the mediation process happens as mentioned in the steps. If the parties refuse to refer the matter for mediation they are imposed some cost sanctions by the Court for ignoring the process.

  • Statement of the problem

The mediator gives the parties a chance to present their issues as their opening statement. The reason for this is that by the end of these statements both the parties and the mediator should have a better understanding of the situation.

  • Joint discussion

The mediator will discuss the issues of both the parties and would also ask relevant questions to them to acquire additional information. He would also be able to figure out through this discussion what issues should be settled first.

  • Private discussion

After the joint discussion of the issues, each party is given an opportunity to discuss in private their concerns with the mediator and also if they want with their lawyers. It is an important step which helps the parties to be prepared for negotiation.

  • Negotiation

The parties negotiate until they reach a settlement which is acceptable to both sides. The mediator provides a solution which saves the interests of both sides. If negotiation fails the matter is then referred to the Court.

  • Agreement

When the terms of the agreement are decided the parties are re-assembled. The mediator would orally confirm the terms of the settlement then they would be written and signed by the parties. The settlement has a binding effect and is enforceable in a court of law. The mediator gives a closing statement by thanking the parties for their participation and cooperation during the entire process.

Advantages of family mediation

  • The matters are handled amicably without affecting the relationship between people. 
  • Provides a speedy justice which also reduces the burden of the courts. 
  • It is flexible and gives the right to the parties to decide whether they want to accept or reject the outcome of the trial.
  • It saves the family relationship and the children of the family from emotional issues they might face due to the long court litigation. Also, it is definitely a good idea for cases where the parents have to be in touch even after their divorce due to their child.
  • It maintains privacy and confidentiality, which gives parties an option to open up as to what option they want to consider which does not happen in court trials. The high profile clients by using this method can keep the details of their issues out of the eyes of the public.
  • It also saves the cost of the parties as they have much more control over the process than in court trials.
  • When the matter is family-related it gets uglier in court proceedings while in mediation the parties can discuss and reach an agreement for settlement. This leads to them being more convinced as to what decision is made.
  • In mediation, the decision can be made according to what suits the requirements of the family, which might not be the scenario in courts.

Benefits of family mediation for lawyers

There are certain benefits which the lawyer gains from family mediation. They are:

  • The lawyers who are already burdened with lots of trials at hand are relieved when the case is referred for mediation as it saves their time.
  • If the client is satisfied the lawyer’s job is done and he successfully solves a case.
  • If the client is satisfied by the lawyer he may refer him to other people too and the lawyer can get more cases in this manner.
  • If the decision of the mediation is in favour of the client, the lawyer gets well paid.

Conclusion

The Mediation process in a family law dispute is safe, informal and also a way to protect the confidentiality of the parties. The popularity of mediation in family law disputes is growing. The parties not only get an opportunity to try and resolve their dispute by discussion but also get an opinion of a mediator who is more aware of such cases.

It also ensures the satisfaction of parties when mediators listen to their opinions and try to reach a solution which is feasible for both of them. They can get a second opinion from their lawyer. Also, if the parties are not satisfied by the outcome of mediation they always have another door open to them to reach out to the Court.

References


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