In this blogpost, Nimisha Srivastava, IIIrd year, Law student, Gujarat National Law University, writes about what is mediation, how effective is it, difference between mediation and conciliation, procedure for mediation and how is mediation useful for matrimonial disputes  

Introduction

India is a common law country that follows an adversarial system of justice. In recent years, the role of the judiciary has expanded and has become more complex in nature. The increasing role of the judiciary has resulted in huge expenditures and undue delays in delivering justice to the seeker of justice. The number of courts has increased the recent years, but the problem still exists because of the likewise increase in the number of cases.

One of the methods to deal with the problem of increasing number of cases is, resolving disputes through the method of arbitration. Alternative dispute resolution shows the importance of Article 21, which stands for right to life, includes right to have a speedy trial. By adopting arbitration methods, one can have an efficient and timely disposal of his dispute.

Effectiveness of mediation proceedings

The growing cost of civil litigation and the excessive delays in dispensing judgments is causing a huge backlog of cases in courts. Mediation, as an alternative remedy has proven to be successful and effective in many situations. Currently, mediation has grown up to be the most preferred way of alternative dispute resolution, especially amongst foreign entities. The reasons include less expenditure and informal and flexible rules. Mediation is often used as the first step to resolve any dispute and failing any resolution under mediation, parties agree that disputes will be referred to arbitration.[1] Now most commercial contracts first refer the dispute to mediation, and if the proceedings are not successful, then the matter is referred to arbitration.

The numerous advantages of mediation, which are beneficial in cases involving divorce disputes, real estate, and labor bargaining etc to settle the case outside court are discussed below:

1. Cost- effective: Mediation takes much less time compared to litigation. Therefore, the fee charged by mediator may be same as that of the attorney but the lower amount of time spent in proceedings means one has to pay lesser than as compared to litigation proceedings.
2. Confidentiality: The mediation proceedings are strictly confidential in nature, unlike the courts where public can visit anytime and be a spectator to someone else’s tragedy. Justice Markanday Katju in the case of Moti Ram Tr.Lrs.& Anr. vs. Ashok Kumar & Anr.[2], held that, “mediation proceedings are totally confidential proceedings. When the mediator is required to send the report of successful proceedings to the court, he doesn’t require sending what transpired during the proceedings. In case the mediation was unsuccessful, he only needs to send the report stating ‘Mediation has been ‘”

The judgment enforces the faith in mediation proceedings in the absence of a statutory provision guaranteeing the same. The only exceptions to this rule usually involves child abuse or actual or threatened.

3. Control: Mediation is an enabling provision which enables the parties to exercise some control over the resolution. In litigation, judges or jury exercise the ultimate control. This helps in arriving at a mutually agreeable solution between parties.
4. Compliance: Mediation proceedings are carried out to obtain consensus amongst parties regarding a solution that may be either proposed by the mediator or by either of the parties. Therefore, the result of mediation is generally complied with by the parties. According to the Arbitration & Conciliation Act, 1996, the mediated agreement is fully enforceable in a court of law. This also reduces expenses as there is the elimination of the need to employ a lawyer for enforcement of the decree.
5. Mutuality: There is a mutual agreement between parties to work towards reaching a solution that is acceptable to both. They are ready to make some adjustments towards their interests and claims. This preserves the relationship between parties.
6. Support: Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process.

Mediation and Conciliation

These are often used interchangeably, but their procedure is same. The difference between conciliation and mediation as given by International Labor Organization which is adopted by the Advisory, Conciliation and Arbitration Service reads as follows:- “Mediation may be regarded as a half way house between conciliation and arbitration. The role of the conciliator is to assist the parties to reach their own negotiated settlement and he may make suggestions as appropriate.  The mediator proceeds by way of conciliation but, in addition, is prepared and expected to make his own formal proposals or recommendations which may be accepted.”[3]

Generally, a subject matter of mediation includes suits for injunction, specific performance, suit for recovery, labour management disputes; motor accident claims cases and matrimonial disputes.

The judiciary is currently inclining more towards mediation as the most viable option for dispute settlement. For instance, on August 22, 2010, the Supreme Court passed an interim order on a suit filed by Assam in 1988 against Nagaland on a border dispute that they should attempt to resolve this dispute through mediation. It is the first time a border dispute in the country has been referred to mediation. This has led to validating mediation as a form of grievance redressal. Also in criminal law, cases which are a subject matter on account of dowry and cruelty under section 406/498-A IPC and under section 138 of Negotiable Instruments Act are suitable for mediation.[4]

In words of Justice Markanday Katju[5], ‘In our opinion, the lawyers should advise their clients to try for mediation for resolving the disputes, especially where relationships, like family, business, are involved. Otherwise, the litigation drags on for years and decades often ruining both the parties. Hence, the lawyers as well as litigants should follow Mahatma Gandhi’s advice in the matter and try for arbitration/mediation. This is also the purpose of Section 89 of the Code of Civil Procedure.’ The dispute in the case was between brothers, and they were directed to appear before Bangalore Mediation Centre for resolution of the dispute. In a very recent case titled Aviral Bhatla vs Bhavana Bhatla[6], the Supreme Court has upheld the settlement of the case through the Delhi mediation centre, appreciating the effective manner in which the mediation centre of the Delhi High Court helped the parties to arrive at a settlement.

Matrimonial mediation

With the changing scenario, a number of cases involving matrimonial disputes are coming forward. The number of petitions involving such disputes leads to a judicial backlog. Alternative dispute resolution provides for a legal structure for resolving issues involving private parties. Matrimonial litigation is disproportionately burdensome to our courts. Marriage in India is considered as a sacrament and not a contract. Mediation is a mere a facilitator that helps the parties to reach for a settlement in dispute. Here parties get more flexible because of the friendly environment unlike courts, which are not so friendly in nature, it is free from complex procedures, easy to understand and, therefore, parties cooperate pleasantly. Mediation serves as very helpful dispute mechanism in the case where, divorce are due to cruelty, unsound mind, some communicable or dangerous diseases etc. in cases like these, such matter can be communicated and confessed easily and effectively because their confessions will not go outside the room.  It is a private and confidential mechanism, unlike courts which are open to the public.  Mediation provides the best platform in divorce cases as it helps parties in arriving at a settlement peacefully.

When we are referring a matrimonial dispute to mediation, it is different from the normal commercial and property matter disputes. The presence of factors like sentiments, emotions, social factors, responsibilities, personal duties, the mindset of the parties regarding the marriage and life in general etc makes the matrimonial disputes distinct and different from others.

As opposed to mediation, emotional and irrational factors play an important role in matrimonial mediation. The considerations have to be weighed beyond the technical aspects. It is the job of the mediator to consider the emotional aspect as well. Unlike in litigation, the mediator who is the facilitator here is concerned with the happiness of the parties. Rather than reason, sentiments play an important role here. The role of the mediator is to arrive at a peaceful settlement that is not detrimental to the interests of either party. His job is not to reinforce his analysis on the parties but rather to prepare the parties to arrive at a solution. Mediator also has to act as a counselor and a conciliator to help the parties go beyond their personal vendetta against each other. The goal of meditation is to achieve lasting peace. The purpose of matrimonial mediation is to reach a consensus between parties towards a solution that is proposed by the mediator or by either of the parties themselves. The mediator is not a judge or an arbitrator here.

As we know that mediation is a voluntary process, parties can simultaneously resort to litigation of civil or criminal nature. Why is the option more preferred by people?

(1) it promotes the interest of the entire family including those of the children

(2) it reduces economic and  emotional cost associated with the resolution of the family disputes.

The professional mediator, not attached to the court does not enjoy the power of commanding a party to his presence. The essential requirement here is that the mediator has to solicit cooperation from the parties. Parties can voluntarily terminate the mediation proceedings also. The neutrality, impartiality of mediator plays a key role in the process. As we know the nature of marriages in the Indian context, so every attempt at reconciliation has to be carried out before granting a final decree of divorce.

In the case of Gaurav Nagpal vs Sumedha Nagpal[7], the Supreme Court observed: ‘It is a very disturbing phenomenon that large numbers of cases are flooding the courts relating to divorce or judicial separation. The provisions relating to divorce in HMA categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Efforts should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings. People rushing to courts for breaking up of marriages should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving of marriage and not breaking it. As noted above it is more important in cases where the children bear the brunt of dissolution of marriage.’

Though it is on the discretion of court to refer the parties for mediation or conciliation, pre-litigation counseling has been seen to be more successful. The parties have yet not polarized; therefore, they have a mindset to arrive at a solution. They are ready to make some sacrifices and adjustments with regards to their demands. Litigation of divorce cases began with parties mounting claims on each other, which are often exaggerated and based on false facts. Either side is focused on winning the suit. The strategy to be adopted here should focus on the counseling or mediation proceedings before the litigation begins. In a recent judgment by Supreme Court[8], K. Srinivas Rao vs D.A. Deepa, it was held that pre-litigation mediation should be promoted. In words of the court ‘If all mediation centres set up pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for pre-litigation settlement, many families will be saved of hardship if, at least, some of them are settled.’ Also, the court said that ‘at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation.’ In this particular case court also asked for referring the disputes filed under section 498 A for mediation with the consent of parties. Directions were issued to courts for implementation of the same. The facts of the case were that the day after marriage, disputes arose between elders of families of the husband and wife. The couple started to live separately. The tension and aggression between families led to the filing of false complaints by wife including that of dowry under section 498 A. In this case, the court considered the importance of matrimonial institution and noted it cannot be said that one spouse is entirely at fault. If parties were sent to mediation at an early stage, the tensions between the two might not have escalated beyond the point of repair. A proper strategy is required to promote pre-litigation mediation. Police complaints filed for maintenance or matrimonial disputes are to be handled with sensitivity, wisdom and patience. The handling of the matrimonial disputes in the form of offence under Section 498 A of the Indian Penal Code, 1860 have necessarily to be handled differently. The accused are not guilty of a criminal offence and are not within the ambit of traditional definition of a criminal. It is the job of the investigating officer to see through frivolous complaints.

The basic difference among the police, the judge and the mediator is that, the police is trained to frame or prove a charge, a judge is to focus his attention on right or wrong doing but a mediator/ counselor is to focus on restoration of equilibrium and remain non-judgmental all through. The mediator remains on guard against his temptation to belittle or give lift to one or other party.

In the case of Jagraj Vs Bir Pal Kaur,[9] it was held by the Supreme Court that the intention of the parliament behind enacting section 23 of HMA was to preserve the sanctity of marriage. Therefore, every step towards the reconciliation of parties has to be carried out by the courts.

In a Madras High Court judgment, it was held’ that under the Quran the marriage status is to be maintained as far as possible, and there should be conciliation before divorce, and, therefore, the Quran discourages divorce, and it permits only after pre-divorce conference.’ The attempt of reconciliation should be made with the help of two mediators, even if a reasonable cause exist, there should be an attempt to arrive at a settlement by the mediators.  In a judgment by Madhya Pradesh High Court, the ruling in the above case was made a base to find out the validity of divorce held without conciliation proceedings.

Procedure of mediation

Unlike the arbitration and conciliation act which deals with arbitration procedure and technicalities, no statute of the same nature exists for mediation. There are two ways for initiation of mediation proceedings:

1. Parties refer to mediation voluntarily i.e. private mediation
2. Court refers the parties to mediation under Section 89 of Civil Procedure Code

In the case of M/S. Afcons Infra. Ltd. & Anr vs M/S Cherian Varkey Construction[10], the Supreme Court has said that while referring to Section 89 by the Court, the court has the discretion to opt for any of the five methods. However, the practical application of the rule says that ‘after the pleadings are complete and after seeking admission/denials wherever required, and before framing issues, the court will have recourse to section 89 of the Code.’ Court will consider the nature of the dispute and refer the parties to five options available and according to the preferences of the parties refer the party to mode.

‘ In case where the questions are complicated or cases which may require several rounds of negotiations, the court may refer the matter to mediation. Though the process under Section 89 appears to be lengthy and complicated, in practice the process is simple: know the dispute; exclude `unfit’ cases; ascertain consent for arbitration or conciliation; if there is no consent, select Lok Adalat for simple cases and mediation for all other cases, reserving reference to a Judge assisted settlement only in exceptional or special cases. ‘

Under Hindu Marriage Act, Section 23 and Special Marriage Act, reconciliation proceedings are mandatory for parties. Section 23 (2) HMA states that before proceeding to grant any relief under it, there shall be a duty of the court in the first instance, in every case to make every endeavor to bring about reconciliation between parties where relief is sought on most of the fault grounds for divorce specified in Section 13. Here the court may refer the party to mediation to for counseling. If the attempt at reconcilement fails then, parties may arrive at a peaceful settlement. The nature of Hindu marriage is that of a sacrament and not a contract. Therefore, every attempt of reconciliation has to be made to avoid divorces that are carried out in haste.

The functional stages involved in mediation are listed below[11]:

1. Introduction and Opening statement
2. joint session
3. separate session
4. closing

The mediation proceedings start with an introduction by the mediator wherein he outlines the process, the issues, the rules of mediation, etc. The statements are made by each party after the introduction. The parties are given an opportunity to present their viewpoint. Questions may be asked by the mediator to clear certain doubts at this stage for a clearer understanding between both the parties. Mediator holds separate sessions with both the parties trying to solve issues, proposing solutions, basically making every effort to have peace between parties. The mediator goes back and forth between the parties during this time, clearing up misunderstandings, and carrying information, proposals, and points of agreement.

Coming to the strategies to be adopted by the counselor, the following stages can be suggested

1.        Probing of facts;
2.       Identifying the real cause of dispute;

iii.      Exploration of possibilities of reconciliation or divorce;

1.      Bring the parties to an agreed solution; and
2.       Shaping the solution in the legal formats.

Since there is no statute regulating mediation process, the mediation centers have come up with their own rules regarding qualification of mediators. IIAM Accredited Mediators are trained and accredited under the International Mediation Institute (IMI – The Hague) norms. They are bound by the Code of Conduct and Ethical Standards prescribed by IMI. According to their website, IIAM is the only institution in India approved by the IMI to certify mediators at global standards.

As per Rule 3 of the Mediation and Conciliation Rules, 2004 the High Court and the District & Sessions Judge can prepare panels for appointment of mediator. The qualifications of the mediators / conciliators given in Rule 4 are :-

(a) (i)Retired Judges of the Supreme Court of India;

     (ii)Retired Judges of the High Courts;

     (iii)Retired District & Sessions Judges or retired officers of Delhi Higher Judicial Service;

     (iv)District & Sessions Judges or Officer of Higher Judicial Service.

(b) Legal practitioners with at least ten years standing at the Bar at the level of Supreme Court or the High Court or the District Courts.

(c) Experts or other professionals with at least fifteen years standing.

(d) Persons who are themselves experts in mediation / conciliation.

The Hon’ble Supreme Court of India has in the landmark decision Salem Advocate Bar Association, Tamil Nadu v. Union of India[12] directed that all courts shall direct parties to alternative dispute resolution methods like arbitration, conciliation, judicial settlement or mediation. The draft “Civil Procedure Alternative Dispute Resolution and Mediation Rules 2003” was also considered by the Supreme Court, for enactment by respective High Courts. Direction was issued to all High Courts, Central Government and State Governments for expeditious follow-up action. The draft rules contained the provision that court is referring the matter to mediation is not disqualified from trying the suit later if no settlement is arrived at between the parties. There are provisions in draft rules for appointment of mediator and fees of mediator. But the same is yet to be adopted by the courts.

Conclusion

Abraham Lincoln said ‘discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.’ Mediation as a mechanism of alternative dispute resolution can be very effectively used. The litigation proceedings in respect of matters like family, divorce, maintenance and alimony or custody, the trial of juvenile offenders or any other matrimonial cause are seen in legal terms. They need to be viewed as a social issue requiring therapeutic approach. Winning or losing is not the prima facie concern in these cases. The important part here is an amicable settlement between people who are/were bound by family. Professional assistance in this area will help them to deal with their issues and resolve their differences. Family disputes need to be seen with a humanitarian approach and hence attempts should be made to reconcile the differences so as to not disrupt the family structure. The matrimonial disputes are not per se criminal in nature; they are not causing harm to public at large. So such disputes and specifically divorce cases need to be dealt separately through mediation. The disturbance in the family affects the society at large.

Mediation as a method to resolve disputes is gaining importance in the current scenario. It has been used effectively to resolve disputes particularly related to divorce. In the absence of a law regulating the same, there is a wide scope of misuse. There already exist some provisions for conduct of arbitration, conciliation and Lok Adalat in different statutes, there is a need for a framework mediation. The step has been taken by the Supreme Court in a few cases discussed above. The Model Rules drafted by the Law Commission need to be brought into force as soon as possible to streamline the whole process of mediation.

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[1] Vyapak Desai & Sahil Kanuga, Mediation proceedings are confidential says Supreme Court, Indian Law Journal. http://indialawjournal.com/volume4/issue_1/article_by_desia_kanuga.html

[2] [2010] 14 (ADDL.) SCR  809

[3] Justice Dr. M. K.  Sharma, Conciliation and Mediation, Delhi Mediation Centre http://delhimediationcentre.gov.in/articles.htm#partI (last updated: September 25, 2015)

[4] Nilofer D’souza, Mediation in Indian Courts, Forbes, September 28 2010.

[5] B.S.Krishna Murthy & Anr vs B.S.Nagaraj & Ors, S.L.P. Civil) No (s).2896 OF 2010

[6] 2009 SCC (3) 448.

[7] AIR 2009 SC 557

[8] K. Srinivas Rao vs D.A. Deepa

[9] Justice Manju Goel, Successful mediation in Matrimonial Disputes – Part I, Delhi Mediation Centre http://delhimediationcentre.gov.in/articles.htm#partI (last updated: September 25, 2015)

[10]   Arbitration Petition (L.) NO.752 OF 2013

[11] Concept and Processes of Mediation, Mediation and Conciliation Project Committee, Supreme Court of India http://mediationbhc.gov.in/PDF/concept_and_process.pdf (last update: September 25, 2015)

[12] AIR2005SC3353