This article is written by Melita Tessy, a student at School of Law, Christ University. In this article, she discusses the theoretical and conceptual framework of family law mediation.

Introduction 

Modern mediation refers to a movement that gathered momentum in the 1970s in the United States, in the 1980s in Australia and the United Kingdom and in the 1990s in much of Europe, Africa and India. [1] 

The need for accessible and affordable dispute resolution was identified in the Pound Conference, formally known as ‘The National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice’ in the address given by Frank Sander. [2] 

The above-mentioned conference took place in Minneapolis in 1976 and addressed issues relating to the perceived crisis in access to justice. A similar voice of dissatisfaction was being heard globally.

Taking the themes that emerged from the then dissatisfaction with access to justice, writers such as Blankenburg, Galanter and Johnson continued to debate on the visions for the justice system. These visions included the introduction of mediation. [3]

In India, the 129th Law Commission of India Report [4] and the report by The Malimath Committee (Committee on Reforms of the Criminal Justice System constituted in November 2000) recommended that a provision for settlement of disputes outside the court be created by the legislature. Based on this, section 89 of the Civil Procedure Code, 1908 was inserted in 1999. [5] 

This section deals with out-of-court settlement mechanisms such as arbitration, conciliation, judicial settlement including Lok Adalat settlements and mediation.

However, there is no specific legislation governing mediation in India. Voluntary mediation is treated as a purely contractual creature established and regulated in accordance to the agreement between the parties and Court Referred or Annexed Mediation under section 89 of the Civil Procedure Code is governed by the Mediation Rules of 2003.

As a result, there is no statutory definition given to the term ‘mediation’. A widely accepted definition of mediation is given by Goldberg and Sanders. According to them, ‘mediation is negotiation carried out with the assistance of a third party. The mediator, in contrast to the arbitrator or judge, has no power to impose an outcome on disputing parties.’ [6] 

Thus, conceptually, mediation is an assisted decision-making process.

Family mediation refers to the process of settlement of family law disputes such as divorce, partition, restitution of conjugal rights and so on through the process of mediation. Family disputes deal with the sensitive personal issues of people and can often involve children. Mediation in this scenario, because of its facilitative and confidential nature, can make the process of settlement of these disputes much easier in comparison to litigation.

With time, the areas of family mediation practice have expanded beyond those arising from divorce and separation and include child protection, child abduction, the homeless young and other kinds of family disputes such as intergenerational family matters. [7]

In this paper, the theoretical and conceptual framework of family mediation under Alternative Dispute Resolution in India is explored.

Legal Framework

Mediation in India is traced back to the Panchayat system that existed since the Vedic Ages. It is believed to be the oldest mode of out-of-court settlements in India. However, the modern-day methods of alternative dispute resolution in India cannot be directly linked to the Panchayat system due to the colonization of the Indian subcontinent by the British. During the colonial period, various legislations were passed by the British rulers to regulate the locals, especially those that lived near the Presidency towns. Arbitration was widely promoted as a means of settling disputes. The Civil Procedure Code of 1859 and various Regulation Acts such as the ones in 1781, 1787 and 1793 laid down the procedure for arbitration in India with the objective of arriving at a mutually-beneficial result between the parties. There are no reliable records as to how successful these efforts were.

Later, the Indian Arbitration Act in 1899 based on the English Arbitration Law of 1889. The Act of 1899 was repealed in the year 1940 and laws relating to arbitration were redrafted and consolidated as the Arbitration Act, 1940 based on the English Arbitration Act of 1934.

After Independence, the word ‘arbitration’ was incorporated under Entry 13 of the Concurrent List of the Indian Constitution. Subsequently, the Arbitration and Conciliation Act, 1996 was enacted based on the UNCITRAL (United Nations Commissions on International Trade Law) Model Law to keep up with the new challenges that liberalization, privatization and globalization of the economy presented to the judiciary. The 1996 Act superseded the Arbitration Act of 1940.

It is clear from the above paragraphs, that the development of alternative dispute resolution was primarily restricted to Arbitration. Conciliation was given some significance only in the year 1996. Despite this, however, these developments indirectly allowed the legal minds of the country to understand the need for mediation and although slow-paced, provide minimally for its regulation.

Coming to Family Mediation, The Hindu Marriage Act and the Special Marriage Act prescribe mediation as the desirable mode of dispute resolution. This can be seen in sections 23(2) and 23(3) of the Hindu Marriage Act of 1955 which make it mandatory for the court in the first instance to try mediation in every case where it is possible, in keeping with the nature of the case. Corresponding provisions can be found in Section 34(3) and 34(4) of the Special Marriages Act.

Research Questions

1. What is the scope and what are the shortcomings of mediation in India? What is the scope of family law mediation in India?
2. What are the steps to be taken to improve mediation in India? 

The History of Alternative Dispute Resolution in India

The ancient Indian jurisprudence recognised two methods by which disputes between citizens could be settled, viz. judicial process in the Court established by the King and the other by various categories of Arbitration Institutions. [8] 

The earliest known model of Alternative Dispute Resolution was the Panchayat system created during the ancient Vedic ages, where the head of the family or the chief of the community acted as the Panchayat head, and whose commands were believed to be the voice of God and was obeyed unquestionably. [9]

During the colonial period in India, various regulations and rules were framed to introduce alternative dispute resolution mechanisms into the legal systems in the Presidency Towns of Madras, Bombay and Calcutta. However, these regulations were concerned with arbitration primarily and laws to facilitate other forms of out-of-court settlements such as mediation and conciliation were not developed.

The Regulation Act, 1781 recommended judges to direct parties to approach a mutually agreed person to settle the disputes among them. However, in such cases, an award of the arbitrator could not be set aside unless there were two witnesses who testified that the arbitrator had committed gross errors or was partial to a party. [10]

Regulation of 1787 laid down rules for referring suits to arbitration with the consent of the parties. However, there was no detailed provision to regulate the arbitration proceedings, nor any provisions for the consequences of the award not being made in time or for the situation in which the arbitrators differed in their opinion. [11]

Regulation XVI of 1793 came up with provisions referring suits to arbitration and submitting them to the decision of the Nizam. Further Regulations XXI of 1793 and XV of 1795 made provisions to promote references of disputes of certain description to arbitration. They even laid down procedures for reference, award and set aside. They further recommended criteria for the appointment of arbitrators. Regulation VI of 1813 allowed arbitration in suits, with respect to rights in land and disputes regarding the forcible disposition of land. Regulation XXVII of 1814 allowed Vakils to act as arbitrators, removing an age-old bar on acting as such. [12]

The act of 1840 passed by the Legislative Council of India amended the law concerned with the arbitration. Section 312 to 327 of the Code of Civil Procedure, 1859 permitted references to arbitration in pending suits. The Code allowed arbitration without the intervention of courts.

Later, the Indian Arbitration Act was enacted on arbitration law in the year 1899. It was based on the English Arbitration Law, 1889. It recognised the concept of arbitration agreements and it allowed reference of present and future disputes to arbitration. The Act of 1899 was repealed in the year 1940 and laws relating to arbitration were redrafted and consolidated as the Arbitration Act, 1940 based on the English Arbitration Act of 1934.

After Independence, the word ‘arbitration’ was incorporated under Entry 13 of the Concurrent List of the Indian Constitution. To increase efficiency, the Indian economy was liberalised, privatised and globalised. This created new challenges in settling large numbers of commercial disputes. The Arbitration Act, 1940 proved insufficient in tackling these new issues. This led to the adoption of the UNCITRAL (United Nations Commissions on International Trade Law) Model Law by India which enacted the Arbitration and Conciliation Act, 1996 superseding the Arbitration Act of 1940. 

In Babar Ali v. Union of India and Others [13], the constitutionality of the 1996 act was challenged. However, the court was of the opinion that the Act was not unconstitutional and in no way did it offend the basic structure of the Indian Constitution.

The government has since independence made efforts to encourage the various types of alternate dispute resolution so as to reduce the burden on courts, improve time efficiency and reduce costs for the parties. However, there are still significant improvements to be made, especially in the field of mediation.

Mediation and Courts in India

The pressure on the judiciary due to a large number of pending cases has always been a matter of concern as that being an obvious case of delay. Therefore promoting widespread use of mediation and conciliation as an effective means of settling disputes without resorting to the formal litigation process has been at the forefront of the Indian Judiciary over the last decade.

In ONGC v. Collector of Central Excise[14], the dispute was between government and department and PSU. It was held by the Supreme Court that public undertaking to solve the disputes amicably by mutual consultation in or through good offices empowered agencies of government or arbitration avoiding litigation. The Government of India was directed to constitute a committee consisting of representatives of different departments to monitor such disputes and to ensure that no litigation comes to court or tribunal without the committee’s prior examination and clearance.

In Salem Advocates Bar Association v. Union of India,[15] the Supreme Court held that after referring a matter to admissions and denials, courts should direct the parties to opt for one of the modes of Alternative Dispute Resolution specified in Section 89. It was observed in this case that the intention of the legislature behind enacting Section 89 is that where it appears to the court that there exists an element of a settlement which may be acceptable to the parties, they, at the instance of the courts, shall be made to apply their mind so as to opt for one or the other of the four Alternative Dispute Resolution mechanisms mentioned in the section and if the parties do not agree, the court shall refer to one or the other of the said modes.

Subsequently, in Afcon Infrastructure Ltd. V. Cherian Varkey Construction Pvt. Ltd.[16], the Supreme Court laid down the summarized procedure to be followed by the referral judge while referring a matter to an alternative dispute resolution method under section 89 of the Civil Procedure Code. As per the procedure, preliminary hearings are to be fixed once the pleadings are complete but prior to the framing of the issues. At this stage, the judge should independently consider the suitability of the case for referral to Alternative Dispute Redressal. In the event the case falls under a suitable category, the judge should obtain the consent of both parties and explain to them the choice of Alternative Dispute Resolutions available, nature and process of the mechanism, and the costs involved. In the absence of consensus, the judge should simply refer simple matters to Lok Adalats and more complex matters to mediation. Once the settlement is reached through Alternative Dispute Redressal, the court will proceed to make a decree in terms of the settlement in accordance with the principles of Order 23 Rule 3 of the Civil Procedure Code and in case no settlement is arrived at, the court will hear the suit. Therefore, based on the case, courts may mandatorily refer to certain categories of matters to Alternative Dispute Resolution.

Mediation around the World

The four countries discussed below are discussed because they have something to offer to the mediation system in India. This section does not consist of a comprehensive collection of facts relating to all aspects of mediation in the countries discussed. Rather, the data provided is limited to relevant details that facilitate understanding of the scope of regulation of mediation. The data is largely obtained from the book ‘Mediation Practice and Law’. [17]

Spain

Spain passed the law on mediation in civil and commercial matters effective from July 2012 to give effect to the 2008 European Union directive on Mediation. Till the passage of the Act, mediation as an alternative dispute resolution mechanism was not widely used in Spain, although the concept of mediation was not unknown in the country. [18]

The 2012 Act applies to civil and commercial matters in Spain with the exception of consumer, employment and public administration mediations, and criminal cases. Cross-border mediations are covered under the Act if at least one of the parties is based in Spain and the mediation takes place in Spain. As per the Act, parties are compelled to attempt to mediate in good faith if there is a mediation clause in a contract. Provisions of the act deal with the qualification of mediators, initiating mediation, confidentiality, restriction on litigation or other legal proceedings during mediation and enforceability of settlement agreements, both domestic and foreign.

The Act specifies that to qualify as a mediator, an individual has to pass specified courses such as law, psychology, negotiation, communication, ethics, etc. In Spain, mediators can be held liable for any damages caused by their actions and are required to have a civil liability insurance policy.

Limitation period is suspended for the duration of the mediation but resumes if the constitutive session is not held within 15 days from the date that the mediator received notice of the mediation. Settlement agreements are binding on the parties.

Italy

Mediation has been used in Italy for several years in family and labour related matters, but only in the last fifteen years has it gained prominence. Several laws provide for mediation, but the European Union Mediation Act, 2011 incorporated into the system is the main law on the matter. The law provides that mediation can only be conducted by mediation bodies accredited by the Ministry of Justice.

Tax incentives and tax credit are available to parties who opt for mediation. A duty is imposed on lawyers to inform their clients in writing about the option of submitting the dispute for mediation and the financial incentives of doing so. The presence of lawyers during mediation is mandatory. The non-attendance of a party at a mediation session without valid justification results in penalties in the form of court costs in future litigation.

The law provides for criteria to be fulfilled by mediators for accreditation and the minimum training required. They may be held liable for misconduct or gross negligence or improper behaviour. Mediation bodies are required to have insurance cover of at least Euros 500,000. 

Austria

Austria was one of the first countries of the European Union to enact comprehensive legislation on mediation through the Civil Law Mediation Act of 2004. Under this Act, mediators must have proper education and qualifications and be registered with the Ministry of Justice. For registration, a mediator must be qualified through training, of at least 29 years of age, with no criminal record and with professional liability insurance. Breach of the confidentiality obligation is punishable by a term of imprisonment of up to 6 months or a fine.

Australia

Mediation in Australia is conducted as a court-connected procedure. There are a few institutions that conduct mediation like the Institution of Arbitrators and Mediators, Australia, the Association of Dispute Resolvers, National Dispute Resolution Advisory Council, Law Society of New South Wales and the Victoria Bar Mediation Centre. In Australia, legal representatives can be held liable for not informing clients of this requirement.

Australia does not have any law for the regulation of mediators, though a voluntary National Mediation Accreditation System has evolved as the primary source of mediator standards since 2008. Accredited mediators are required to hold indemnity insurance. 

Recommendations to improve Mediation in India

The following recommendations are based on mediation trends in the countries discussed above and the Mediation Rules of 2015. The recommendations are as follows:

• In India, the Central Mediation Rules provide the qualifications necessary to be a mediator in court-connected mediation centres. However, they don’t provide qualifications for mediators in private centres. This leaves private mediation largely unregulated which can leave inexperienced and underqualified mediators providing sub-par services to the parties. Framing rules based on the system in Spain and Austria can enhance private mediation in India. The 2012 act governing mediation in Spain specifies that to qualify as a mediator, an individual must pass specified courses such as law, psychology, negotiation, communication, ethics, etc. This is followed by training specific to the practice. For registration, as a mediator is Austria, among other things, one must be qualified through training, of at least 29 years of age and with no criminal record. Adopting these provisions can make mediation well-known and attract youngsters into the field. This has the additional benefit of creating employment opportunities. 

As per Rule 5 of the Mediation Rules 2015, court-empanelled mediators need to have a minimum of 10 years of experience as a lawyer or they need to be a Judicial Officer of the Higher Judicial Service or they need to be an expert or professional with fifteen years standing. All these qualifications take a long time to achieve. A lawyer with a ten-year practise might, in most cases, find it profitable to continue his practice when compared to beginning a new mediation practice. The same can be said for an expert or professional with 15 years standing. Retired judges, bureaucrats and senior executives can also be court-empanelled mediators. But it is to be noted that the said individuals are not half as hungry for jobs as youngsters would be. They have a plethora of high-profile tasks to choose from once they retire. For example, they may be tasked with heading committees, quasi-judicial bodies, advisory roles, mentoring and so on. For these reasons, the qualifications required to be a court-empanelled mediator must not be the same as the qualification required to be a private mediator. If it is possible, even the criteria to be a court-empanelled mediator must be widened.

• Under Rule 26 of the Mediation rules, no honorarium (fees) is paid to court-nominated mediators in cases where a settlement is not reached by the parties. Given this situation, it is sadly, reasonable to assume that this might make the mediator act in his own interests as opposed to those of the parties when it comes to settling a dispute. In fact, the highest fee a mediator can acquire per settlement is when it comes to family law disputes such as matrimonial cases, custody, guardianship, probate, partition and possession. Upon settling one such family law dispute, a mediator is entitled to a payment of Rs. 3000. If he has settled two or more of such connected cases, he is given a maximum of Rs. 4000. If mediation is to ever become a sustainable career choice, this pay structure must be modified by increasing the fees per settlement.
• The second recommendation is concerned with insurance. In Spain, mediators are required to have a civil liability insurance policy. Mediation bodies in Italy are required to have insurance cover of at least Euros 500,000. In Austria, mediators are required by law to have professional liability insurance. Accredited mediators in Australia are required to hold indemnity insurance. These requirements provide a safety net to the parties to a mediation. They give legitimacy to the mediation profession. Parties will be compensated for any losses they suffer due to the negligent actions of the mediators. For the said reasons, mediators must be mandated to have professional liability insurance in India. 
• The law in Italy provides that mediation can only be conducted by mediation bodies accredited by the Ministry of Justice. A similar regulation can be framed in India so that the quality of mediation can be high. 
• In Italy, a duty is imposed on lawyers to inform their clients in writing about the option of submitting a dispute for mediation and the financial incentives of doing so. This alone can greatly popularize mediation and its benefits can be successfully reaped. 
• Another important aspect of popularizing mediation would be by making it a part of law-school and business-school curriculum in the form of an elective course. 
• The last recommendation is the most obvious one. It is for the legislature to pass an act that governs mediation. Till the passage of the 2012 mediation act in Spain, mediation as an alternative dispute resolution mechanism was not widely used in Spain, although the concept of mediation was not unknown in the country. Passing an act for mediation in India can have the same effect in India as passing an act for mediation had in Spain.

Types of Models of Mediation

There are four main models of mediation. They are:

1. Facilitative Mediation; 
2. Evaluative Mediation; 
3. Transformative Mediation and;
4. Expert-advisory Mediation. [19] 

They are differentiated on the grounds of objectives, procedures and value assumptions.

Facilitative Mediation

In the facilitative style of mediation, the mediator is in charge of the process, but the parties are in charge of the result.[20] This mediation model may be adopted where the parties, on their own accord, cannot reach a conclusion as to what procedure must be followed in conducting the mediation proceedings. This type of mediation generally consists of joint sessions where all the parties are present and importance is given to the interests of the parties.

In facilitative mediation, caucuses are held on a regular basis. They want the parties to have the major control on decisions made, rather than the parties attorneys.[21] This is the first and most common form of mediation. The goal of this type of mediation is a win-win settlement where the mediator helps all the parties achieve a mutually beneficial result.

Evaluative Mediation

An evaluative mediator guides the parties in reaching resolution by highlighting the weaknesses of their cases, and predicting what a judge or jury would be likely to do. Evaluative mediators are more concerned with the substantive legal rights of the parties rather than focusing on positions and interests and evaluate based on legal perceptions of fairness. The mediators meet quite often in separate meetings with the parties and their attorneys, practising shuttle diplomacy.[22] The evaluative mediator is totally responsible for organizing the process of the mediation, and also directly influences the outcome of the mediation.

Evaluative mediation is oftentimes court-mandated or court-referred mediation. Attorneys normally work with the court to decide the mediator and are active participants in the mediation. The role played by the parties are most often much less active here when compared to facilitative mediation.

Transformative Mediation

This type of mediation came after facilitative and evaluative types of mediation. It was propagated by Professors Baruch Bush and Joseph Folger in 1994. [23] 

According to Leonard Riskin “in some ways, the values of transformative mediation reflect those of early facilitative mediation, in its interest in empowering parties and transformation.” [24] 

In a transformative style of mediation, the parties are responsible for the formulation of both the process and outcome of mediation, and the mediator has to follow the lead. [25]

Both facilitative and transformative types of mediation are focused on empowering the parties and their interests. This can promote greater ownership of the agreed settlement by the parties, making them more willing to abide by it. However, the said types can take much longer to settle when compared with evaluative mediation. They can also end without a settlement reached. Another issue that plagues facilitative and transformative mediation is a power imbalance. The party/parties with greater bargaining power (Access to Legal and Technical Experts, Greater Spending Capability) can dominate those with lesser bargaining power since the mediator takes a backseat and it is up to the parties to play an active role in negotiating a settlement. When the mediator is involved to a great extent, the process has more credibility. Evaluative mediation too, however, has its disadvantages. The positions of the parties will be fixed as it is based on the party’s rights rather than interests. This might lead to polarization. The parties in evaluative mediation may be more reluctant to collaborate with each other to find a solution and a win-win situation may become harder to achieve when compared to facilitative and transformative styles of mediation.

Expert-Advisory Mediation

This type involves a high intensity of mediators intervention in the problem. Expert Advisory mediators are typically senior lawyers or other professionals chosen on the basis of their expertise in the subject-matter of a dispute and their pre-eminence, rather than their mediation practice skills.[26] Parties are generally accompanied by legal representatives. A positional bargaining approach similar to that in evaluative mediation is adopted rather than an interest-based one. That is, the parties hold a fixed position regardless of underlying interests. The advantage is that the parties focus on the issues common to all of them rather than the interests specific to each of them. 

Expert advisory mediation may be useful where there is a power imbalance between parties. The party/parties with greater bargaining power will not be allowed to dominate those with lesser bargaining power because the mediation process and its results will be respectively controlled and directly influenced by an expert mediator who is concerned with the rights of the parties and not their bargaining ability or interests. This type of mediation can be court-mandated quite often.

Court-annexed Mediation

Court-annexed mediation refers to court-referred or court-mandated mediation proceedings under section 89 of the Civil Procedure Code where the referral judge oversees the mediation proceedings conducted by the mediator. It is governed by the Mediation Rules of 2015. It is one of the types of court-annexed alternative dispute resolution mechanisms. The 129th Law Commission of India report notes that:

When a court refers a case to a court-annexed mediation service, keeping the overall supervision of the process, no one would feel that the system parts with the case. This also gives a larger public acceptance for the process, as the same time-tested court system, which has acquired public confidence because of integrity and impartiality retains its control and provides additional service. [27] 

Advantages of Mediation 

According to Goldberg and Sanders, ‘Despite the lack of ‘teeth’ in the mediation process, the involvement of a mediator alters the dynamics of negotiation.’[28] This altered dynamic is a preferable one as the mediator helps the parties understand each other’s views, provides new legal and technical information and makes an assessment of the alternatives to a settlement. The advantages of mediation are enlisted below:

• Mediation is more time and cost-effective than arbitration and litigation. Parties to a mediation settlement need not go through long court waiting lists. It is advantageous compared to conciliation for those who want guidance, but also want to come up with solutions by themselves. It is ideal for those who want to make use of the least intrusive process in reaching a settlement.
• The mediation process is a flexible one. The structure of the mediation process is not rigid. Rule 10(a) of The Mediation Rules of 2015 allows the parties to decide on the procedure to be followed by the mediator in the conduct of mediation proceedings. If they don’t reach an agreement regarding the procedure to be followed, Rule 10(b)(i) gives the mediator the power to fix, in consultation with the parties, a time schedule, the dates and the time of each mediation session, where all parties have to be present. The same opportunity is not provided by traditional courts to the parties in a case. Rule 10(b)(ii) even allows the mediator to hold the mediation session at any convenient location agreeable to him and the parties. This level of flexibility is highly desirable to the parties who opt for mediation. However, the currently applicable Mediation Rules of 2015 does not have this provision. Rule 11 of the 2015 rules merely state that a matter referred to the mediation must be settled by the structure usually followed, including but not limited to, introduction and opening statement, joint session, separate session(s) and closing. 
• The efficiency that mediation offers does not only benefit the parties but also benefits overburdened civil courts by reducing their workload.
• Mediation assures privacy under Rule 21 of the 2015 rules by allowing all mediation sessions to be attended only by the concerned parties or their counsel or the power of attorney holders. Other persons can attend only with the permission of the parties and with the consent of the mediator. This level of privacy cannot be guaranteed in in-court settlements. 
• Rule 12 of the 2015 rules state that Mediation is not bound by The Evidence Act, 1872 or Code of Civil Procedure, 1908. This in itself extends the flexibility of the Mediation process. Confidentiality to be maintained by the parties and the mediator under Rule 20 of the 2015 rules is another attractive feature of mediation.

Theories of Mediation

According to Ury, Brett, & Goldberg, there are three methods that can be used in conflict resolution.[29] These three methods are applicable to mediation. These three methods give rise to three different theories of conflict resolution. The first and third theory is applicable to facilitative and transformative models of mediation, while the second is applicable to evaluative and expert-advisory mediation. They are:

The Theory of Power-oriented Conflict Resolution

A party using power to resolve a dispute seeks to prevail over the other party by using force: physical, economic, or psychological. An example of physical force would be a civil rights group blocking access to a restaurant believed to be discriminating in hiring; economic force would be the civil rights group organizing a consumer boycott of the restaurant; psychological force would be a member of the civil rights group refusing to talk to one of his friends until he stopped patronizing the restaurant. Threats to take harmful action if one’s demands are not met are another use of power. Determining which party is more powerful without engaging in a potentially destructive power contest is difficult. This is because power is largely a matter of perception and each party’s perception of its own and the other party’s power may differ. Additionally, once a power struggle has begun, it can easily spiral out of control as each party invests more and more resources for fear of losing a decisive battle. The restaurant believed by the civil rights group to be discriminating may, for example, engage high-priced lawyers to seek millions of dollars in a defamation action designed to bankrupt the civil rights group. The latter, in turn, may seek to persuade suppliers not to do business with the restaurant. In the end, a power contest results in costs for both parties, even if one capitulates.

The Theory of Rights-oriented Conflict Resolution

Another way to resolve disputes is to rely on an independent standard with perceived legitimacy or fairness, such as the law or a contract between the parties, to determine which party is “right.” A problem with this approach is that rights are rarely clear. One party relies on a law that supports its position; the other party relies on a different law or a different interpretation of the first law. To resolve the question of whose rights, standard or interpretation should prevail, the parties often need to turn to a third party, an arbitrator or judge, to make a binding decision. Involving a third party decision-maker is frequently a costly and time-consuming procedure. Furthermore, the loser may only grudgingly comply with the third-party’s decision, leading to further disputes. Finally, a conclusion that one party is right and the other wrong may end their existing relationship and the prospect of any future relationship. Think of the number of divorced couples, who, after a bitter court fight over child custody, are soon back in court because they cannot cooperate on some new child-related issue.

The Theory of Interest-oriented Mediation

Interests are peoples’ needs, desires, concerns, or fears, the things they care about or want. Interests underlie people’s positions, the tangible items they say they want when they make or reject claims. Reconciling interests is not easy. It involves probing for deep-seated concerns, determining which interests are more important than others, devising creative solutions that reconcile interests, and making trade-offs and concessions. But, interest-based agreements are possible in many disputes. Recall the quarrel between husband and wife about whether to spend money on a new car. Suppose that his underlying interest was to impress his friends and hers was reliable transportation. An interest-based solution might be to buy a high end, but less expensive, used car with a long-term warranty, so satisfying the wife’s interest in reliable transportation and the husband’s interest in impressing his friends. In the land-use permit dispute, both the government agency and the user groups may have an interest in conserving the park for future use. As a result, the agency may agree to issue a use permit if the users agree to leave the campsite in a pristine condition and solicit volunteers for the annual park clean-up day.

Family Law Mediation

Matrimonial disputes are a key area for the use of mediation. When mediation first started as a structured process, it was introduced for matrimonial and industrial disputes. Even before trained mediators came on to the scene, family counsellors were common. Sometimes psychologists and even divorce lawyers try to reconcile differences between the couple. The very nature and composition of a family unit – domestic, sensitive, emotional and private – draw a presumption for the use of consensual dispute resolution. [30]

Mediation of matrimonial disputes has many advantages in comparison to litigating the same. Family mediation creates a safe space for analysing touchy topics and enables rational thinking in difficult circumstances. This, in turn, enables the parties to understand each other and draw up solutions that are mutually favourable. When issues are solved this way as opposed to a time-consuming, adversarial process, there is much less to recuperate from.

In fact, the process in itself creates scope for inner-healing and reparation of the relationship between both the parties as there is no fighting involved. Keeping confidential delicate and intimate issues is another attractive feature of mediation. Parties are more likely to be honest and willing to open up regarding their feelings and interests, especially since either party can meet up with the mediator separately. Children involved in mediation as opposed to court proceedings are less likely to suffer from neglect and emotional and physical insecurity as the process endeavours to be quick and empathetic to their needs. 

Indian statutes concerned with family disputes emphasize the need for attempting reconciliation and out-of-court settlements. Settling through reconciliation in family disputes received statutory recognition in India even before the enactment of Part III of the Arbitration and Conciliation Act of 1996.

Importance of Family Law Mediation

The traditional approach in most family law disputes has been for each partner to consult their own lawyer and for the two lawyers to negotiate on their client’s behalf, reach agreement if possible or, if not, hand over to a judge the responsibility of making decisions. The judge makes an order that is imposed on the parties based on the facts before him.

For couples unable to reach an agreement on their own, the only alternative, therefore, was to transfer responsibility for negotiating and decision-making to third parties. So, mediation emerged to fill a space hitherto unoccupied, which none of the existing services, welfare, advisory or therapeutic on the one hand and lawyers and the courts on the other, could in nature have filled. 

Statutory Provisions concerned with Family Law Mediation in India

The Hindu Marriage Act and the Special Marriage Act prescribe mediation as the desirable mode of dispute resolution. This can be seen in sections 23(2) and 23(3) of the Hindu Marriage Act of 1955 which make it mandatory for the court in the first instance to try mediation in every case where it is possible, in keeping with the nature of the case. Corresponding provisions can be found in Section 34(3) and 34(4) of the Special Marriages Act. The court must make every endeavour to bring about a reconciliation between the parties to the dispute, and may refer the matter to a person nominated by the parties or by the court to effect a reconciliation.

Section 89 and Order XXXII-A of the Code of Civil Procedure, 1908, which makes it obligatory for the court to refer all suitable disputes to arbitration, conciliation, mediation or judicial settlement. Section 14 of the Protection of Women from Domestic Violence Act, 2005 provides that the court can refer the matter to conciliation at any stage of the dispute. The Family Courts Act of 1984 makes a slight departure in Section 9 of the Act making it the court’s obligation to try and bring about a settlement between the parties. 

Conclusion

Backlog of cases in judicial bodies due to an overwhelming number of petitions undermines the fundamental goals of in-court processes. It also violates the fundamental right to a speedy trial under Article 21 laid down in Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar. [31] Each and every dispute need not be heard by a judge in a court. This gives courts the opportunity to reduce the backlog by referring cases to alternate dispute resolution mechanisms once a case is deemed fit for such mechanisms. Popularizing mediation and other alternative dispute mechanisms, setting up mediation centres in every district and training mediators needs to take place so that justice is assured to all those who seek it. 

At the same time, precautions must be taken to not overburden court-connected mediation centres. Cases must not be referred to mediation indiscriminately as all cases are not suitable for the same. The act of referring a case to mediation with an intent to delay court proceedings or to avoid a judge must be identified and discouraged by levying a fine. Pre-litigation mediation and non-litigative mediation must be promoted in suitable areas so that mediation does not denigrate to a solely court-controlled process. In cases where parties select and pay their own mediator, the room for success is greater as they have confidence in the mediator’s ethics, ability and neutrality. They pursue the process earnestly since it is funded by them. This also ensures that they refrain from resorting to delaying tactics and avoiding judges.

References

[1] N. Alexander, Global Trends in Mediation (1st Edition, Kluwer Law International, 2006)

[2] Frank E. A. Sander, Varieties of Dispute Processing: Address at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Levin and Wheeler, 1979)

[3] M. Cappelletti, Alternative Dispute Resolution Processes Within the Framework of the World Wide Access-to-Justice Movement, 56 Modern Law Review 287 (1995)

[4] Law Commission of India, Report on Urban Litigation Mediation as an Alternative to Adjudication (129th Report, 1988)

[5] The Civil Procedure Code (Amendment) Act, 1999, No. 46, Acts of Parliament, 1999 (India)

[6] Stephen B. Goldberg, Sander and Rogers, Dispute Resolution: Negotiation, Mediation and other Processes (3rd Edition, Aspine Law and Business, 1999)

[7] Marian Roberts, Mediation in Family Disputes: Principles of Practice (3rd Edition, Ashgate Publishing Company 2008)

[8] Dr Kane, History of Dharmashastra: Volume 3 (1st Edition, Bhandarkar Oriental Research Institute, 1968)

[9] Maine, “Ancient Village Communities”, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (1st Edition, Hardpress Publishing, 2019)

[10] Rishab Sinha, Sarabjeet Singh, “Taking Alternative Dispute Resolution To The Common Man”, … http://www.adrcentre.in/images/pdfs/Taking%20Alternative%20Dispute%20Resolution  %20To%20The%20Common%20Man.pdf

[11] Nripendra Nath Sircar, Law of Arbitration in British India, 1962

[12] Vishnu S Warrier, Arbitration, Conciliation and Mediation (1st edition, LexisNexis, 2015)

[13] Babar Ali v. Union of India and Others, 2 SCC 178 (SC: 1999)

[14] ONGC v. Collector of Central Excise, 4 SCC 541 (SC: 1995)

[15] Salem Advocates Bar Association v. Union of India, 1 SCC 49 (SC: 2003)

[16] Afcon Infrastructure Ltd. V. Cherian Varkey Construction Pvt. Ltd, 8 SCC 24 (SC: 2010)

[17] Sriram Panchu, Mediation Practice and Law (2nd edition, LexisNexis, 2015)

[18] Arevalo, Irene, Mediation in Spain, IBA Mediation Committee Newsletter, April 2005, pg.29

[19] N Alexander, The Mediation Metamodel: Understanding Practice, 26 Conflict Resolution Quarterly 97 (2008)

[20] Leonard L Riskin, “Understanding Mediators” Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1:7 Harv. Neg. L.R 7 (1996)

[21] Anirban Chakraborty, Law & Practice of Alternative Dispute Resolution in India: A Detailed Analysis (1st Edition, LexisNexis, 2016)

[22] Lela P. Love, The Top 10 Reasons Why Mediators Should Not Evaluate, 24:4 Florida State University Law Review 937 (1997)

[23] Robert A. Baruch Bush and Joseph P. Folger, The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition (1994)

[24] Leonard L Riskin, ‘Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1:7 Harv. Neg. L.R 7 (1996)

[25] Id.

[26] Supra 9

[27] Supra 4

[28] Supra 6

[29] Ury, W. L., Brett, J. M., & Goldberg, S. B., Getting Disputes Resolved (1st edition, Cambridge, 1993) 

[30] Sriram Panchu, Mediation Practice and Law (2nd edition, LexisNexis, 2015)

[31] Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, AIR 1369 (SC: 1979)