Role Of Mediation in Family Law Disputes
“Justice delayed is justice denied”
- William E Gladstone
If the principle of timely justice is not adhered to, it is tantamount to complete negation of justice. In Indian Judicial system, this problem is prevalent as there is a backlog of nearly 27 million pending cases. Mediation has emerged to be the most widely accepted dispute resolution mechanism for resolving disputes in India. It is a process where a neutral third party, known as mediator, assists the parties in a dispute to come to an agreement that is acceptable to both parties. Herein, the mediator fosters communication between the parties in order for them to come to a mutually agreeable agreement and thereby they are not forced to agree to anything which the parties do not wish for. In family law disputes, mediation can help the parties maintain a healthier relationship, especially if children are involved. Property disputes, marriage troubles, inheritance issues and child custody problems are all major causes of family disputes in India. These disputes can be extremely taxing and have a substantial influence on the mental health and well-being of the parties involved.
In India, the role played by mediation in family disputes is diverse. First and foremost, mediation aids to preserve the relationship between the disputing parties. Mediation provides an atmosphere for the parties to constructively engage with one another and reach a solution, that is acceptable to both of the parties, thereby preserving their relationship. Secondly, mediation is also a confidential procedure, which means that any discussions or negotiations that occur during the mediation cannot be used as evidence in court. This promotes open and honest communication between the parties. The mediator helps to create an atmosphere of trust and respect, thereby allowing the parties to interact freely and honestly. It is faster and a less expensive alternative rather than litigation which can be a time-consuming procedure with many hearings and appeals that can last years to resolve. Mediation, on the other hand, can be accomplished in a few sessions, saving the parties significant amount of their time and money.
Section 34(3)[5] and section 34(4)[6] of the Special Marriage Act, 1954 and the section 23(2) and section 23(3) of the Hindu Marriage Act, 1950, require courts to make an effort to mediate a solution between the parties seeking a divorce based on the facts and circumstance of each case. Section 89 of the Civil Procedure Code provides the process for court ordered mediation. In the case of Mohd. Mushtaq Ahmed vs. State, after disagreements between a couple occurred following the birth of a girl child, the wife filed a divorce petition alongside a FIR against the husband under section 498 of IPC. Under Section 89 CPC, the Karnataka High Court directed the parties to mediate. Further, the case was settled peacefully through mediation and the wife chose to quash the FIR. While an offence punishable under Section 498-A of IPC is not compoundable, the Supreme Court of India in the case of Ram Gopal vs State of Madhya Pradesh stated that in suitable circumstances, if the parties are agreeable and the criminal court believes there are elements of resolution, it should instruct the parties to investigate the possibilities of reaching an agreement through mediation.
These cases illustrate India’s growing appreciation for the value of mediation in family law disputes. The majority of cases sent to mediation in court administered systems are family law disputes. Parties will rapidly realize that mediation significantly outweighs the alternatives, and they will seek it out sooner rather than later. In conclusion, mediation plays a vital role in resolving family disputes as it provides the parties to interact in a safe and confidential environment, preserves their relationship, and is a more flexible, faster and cost-effective manner of resolving conflicts than traditional litigation.
References
Author – Avni Bhayani, A student at Pravin Gandhi College of Law, Mumbai
