Abstract
Among Social Institutions marriage and family are important institutions. They form the basis of society. From time immemorial, marriage is considered to be sacrament, permanent, indissoluble in Hindu mythology while in religions such as Muslims, Parsis, Christians etc marriage is nothing but is a special civil contract. With changing dimensions of society the definition of marriage has also changed from living together till death to ‘marriage is ,while there is no rose which has no thorns but if what you hold is all thorn and no rose, better throw it away’. Such an attitude of society towards marriage has not only affected the morality in society but at the same time has also flooded the Indian Judiciary with millions of pending litigations. Even for petty issues, the couples are filing cases in courts which affect the speedy justice delivery System. In order to help the Indian Courts to overcome from the nexus of pending litigations it is necessary to find out an effective medium to deal not only with the issue of pending cases but simultaneously, amicably settling the issues which affect the institution of marriage as the matrimonial disputes not only affect the married couple but also the family at large. Thus resorting to Alternative Dispute Resolution forums such as Mediation is an effective solution for dealing with matrimonial dispute as Matrimonial Mediation saves precious time, energy and money of parties, apart from saving them from the harassment and hassles of a prolonged litigation . Its procedure is simple, informal and confidential and reduces worry and tension associated with litigation. It is rightly said by Joseph Grynbaum ‘An ounce of Mediation is worth a pound of Arbitration and a ton of Litigation’. Thus there are various Legislative Acts which lays down provision vis-à-vis Matrimonial Mediation and which has helped a lot in reducing the burden of pending litigations.
Introduction
‘Discourage Litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often really a loser - in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity at being a good man. There will still be business enough.’~ Abraham Lincoln, 1850
Mediation as a mechanism of ADR i.e. 'Alternative Dispute Resolution’ can be used very efficiently. The litigation proceedings in respect of matters like family, matrimonial, the trial of Juvenile Offenders or any other property cause are seen in legal terms. They need to be viewed as a social issue requiring therapeutic approach. Mediation is a remedial supplementary process for amicable resolution of disputes between disputants within reasonable time with no additional costs. Mediation is especially helpful in family disputes because of the unique nature of family law. The Indian History witnesses several instances where the disputes were used to be resolved by means of mediation like the panchayat system where elder people used to resolve the dispute. In tales Ramayana people used go to Ram darbar, where Lord Ram, heard their disputes and settled amicably by applying common sense. The traditional 'Justice Delivery System' all over the world has come over burdened, due to explosion of litigation which necessitated again to search for 'Alternative Dispute Resolution' System. The aim of this article is to suggest an alternative dispute resolution method-mediation as a worthy option for resolving family conflicts.
History Of Mediation In India
In India, the origin of mediation is recondite by the lack of a clear historical record. As recorded in Mulla's Hindu Law, the ancient India witnessed the first instance of mediation during the age of Aryans as they primarily practiced the unwritten law of divine wisdom, reason and prudence, which according to them governed heaven and earth. The era of Dharma Shashtras [code of conduct] followed the Vedic epoch, during which period scholastic jurists developed the philosophy of basic laws. Their learned discourses recognized existing usages and customs of different communities, which included resolution of disputes by non-adversarial indigenous methods. Buddhism propounded mediation as the most efficient and wisest method of solving disputes. Buddha said, 'Meditation brings wisdom; lack of mediation leaves ignorance. Know well what leads you forward and what holds you back; choose that which leads to wisdom'. Even during the Mughal rule, Emperor Akbar depended upon his mediator minister Birbal in deciding various cases. It is widely accepted that a village panchayat system , where five wise and elder men, used to be recognized and accepted as a conciliatory and / or decision- making body and almost all matters vis-à-vis family, property etc. related disputes are resolved by way of mediation and negotiation in village panchayat system.
Legal Recognition of Mediation in India
The concept of mediation received legislative recognition in India for the first time in the Industrial Disputes Act, 1947 where the conciliators appointed under Section 4 of the Act are 'charged with the duty of mediating in and promoting the settlement of Industrial disputes.' Detailed procedures were prescribed for conciliation proceedings under the Act. Arbitration, as a dispute resolution process was recognized as early as 1879 and also found a place in the Civil Procedure Code of 1908. When the Arbitration Act was enacted in 1940 the provision for arbitration originally contained in Section 89 of the Civil Procedure Code was repealed. The Indian Legislature made headway by enacting The Legal Services Authorities Act, 1987 by constituting the National Legal Services Authority as a Central Authority with the Chief Justice of India as its Patron-in-Chief. The Indian parliament enacted the Arbitration and Conciliation Act in 1996, making elaborate provisions for conciliation of disputes arising out of legal relationship, whether contractual or not, and to all proceedings relating thereto. The Act provided for the commencement of conciliation proceedings, appointment of conciliators and assistance of suitable institution for the purpose of recommending the names of the conciliators or even appointment of the conciliators by such institution, submission of statements to the conciliator and the role of conciliator in assisting the parties in negotiating settlement of disputes between the parties. In 1999, the Indian Parliament passed the CPC Amendment Act of 1999 inserting Sec.89 in the Code of Civil Procedure 1908, providing for reference of cases pending in the Courts to ADR which included mediation. The Amendment was brought into force with effect from 1st July, 2002. Since the inception of the economic liberalization policies in India and the acceptance of law reforms the world over, the legal opinion leaders have concluded that mediation should be a critical part of the solution to the profound problem of arrears of cases in the civil courts. In 1995-96 the Supreme Court of India under the leadership of the then Chief Justice, Mr. A.M Ahmadi , undertook an Indo-U.S. joint study for finding solutions to the problem of delays in the Indian Civil Justice System and every High Court was asked to appoint a study team which worked with the delegates of The Institute for Study and Development of Legal Systems [ISDLS], a San Francisco based institution. After gathering information from every State, a central study team analyzed the information gathered and made some further concrete suggestions and presented a proposal for introducing amendments relating to case management to the Civil Procedure Code with special reference to the Indian scenario.
Evolution of Mediation In India
The first elaborate training for mediators was conducted in Ahmedabad in the year 2000 by American trainers sent by Institute for the Study and Development of Legal Systems (ISDLS). It was followed by a few repeated advance training workshops conducted by Institute for Arbitration Mediation Legal Education and Development (AMLEAD) a Public Charitable Trust settled by two senior lawyers of Ahmedabad. On 27th July 2002, the Chief Justice of India, formally inaugurated the Ahmedabad Mediation Centre, reportedly the first lawyer managed mediation centre in India. The Mediation and Conciliation Project Committee (MCPC) was constituted by the then Chief Justice of India Hon'ble Mr. Justice R.C. Lahoti by order dt. 9th April, 2005. Hon'ble Mr. Justice N. Santosh Hegde was its first Chairman. It consisted of other judges of the Supreme Court and High Court, Senior Advocates and Member Secretary of NALSA. MCPC has been taking the lead in evolving policy matters relating to the mediation and Conducting Mediation Workshops and trainings.
Meaning of Mediation
Mediation is a structured, voluntary, Non Judicial, confidential and interactive negotiation process by which a neutral third party, the mediator, facilitates negotiations between the the parties to the disputes and assists them to explore each other’s point of view, enabling the disputants to reach to a settlement of the dispute, amicably. Mediation, like equity, was conceived of as justice without law . Patanjali said, 'Progress comes swiftly in mediation for those who try hardest, instead of deciding who was right and who was wrong'.
Mediation is of many kinds like
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- Statutory mediation - where some kinds of disputes are required by law to be subjected to the mediation process, such as disputes in labour and family law, for example, in India, r. 5(f)(iii) of the Civil Procedure- Mediation Rules, 2003 provide for mandatory mediation, though recourse to it is rare.
- Court Ordered Mediation - where before resolving through judicial process, as soon as the case is filed, the parties are provided with options of ADR in order to solve the dispute as per their comfort level out of which they are required to opt for one unless exempted by the court.
- Private Mediation- where mediation services are provided on a monetary private basis by qualified mediators to the Court, general public, governmental and commercial sectors for resolving disputes through mediation and recourse may also be taken to private mediation in pending or pre- litigation cases.
- Contractual mediation- where parties to a contract may add a clause to resolve disputes that may arise in future as part of the terms of their contractual agreement and voluntarily decide the condition of the mediation, selection of mediators etc.
Who is a Mediator?
The mediator is a neutral and unbiased third party who assist the parties in dispute by facilitating them to negotiate in order to resolve their dispute and mutually agree to a settlement. A mediator is generally and usually a lawyer or retired judge, but can be a non- attorney specialist in the subject matter like child custody etc. Mediators are experienced advocates with a minimum standing of 10 years at the Bar and who have been given special training in the art of mediation by national level expert trainers in Supreme Court and High Courts.
A mediator is required to be neutral, must have a common understanding of human nature, should be able to persuade parties, have patience and the most important must maintain the confidentiality and never disclose the facts or secrets of the parties to the outsiders to the detriment of the disputants .
The mediator has a vital role to play in facilitating communication between the parties in conflict with a view to helping them to voluntarily reach to a settlement by timely cost effective and fair procedure. He must conduct the procedure of mediation properly following all the laws and conditions and has no right to provide legal advice to the disputants even if the mediator happens to be a lawyer. He must follow the code of conduct and must keep no stone unturned to make the parties to settle their dispute through mediation.
Concept Of Matrimonial Mediation
The institution of Marriage forms an important pillar of a healthy society. But looking on to the recent trends, the understanding of the institution of marriage and its cruciality in the society has changed. In several mythologies like Hindu mythology, marriage is considered to be sacrament and a lifelong commitment but with passing years it has turned out to be false. The Indian Courts are burdened with backlog of cases and issues regarding matrimonial dispute which is increasing day by day. Thus emphasis is being laid down in searching other or alternate ways to settle matrimonial dispute and mediation which is a form of ADR is especially efficient in dealing with matrimonial disputes since it focuses on the non-coercive and consensual process. Mediation is the very basis of every society to maintain harmony in the social fabric. The matrimonial disputes are distinct from other types of disputes on account of presence of certain factors which are not obtained in other disputes. These factors are motivation, sentiments, social compulsions, personal liabilities and responsibilities of the parties, the views of the two parties regarding life in general and to the institution of marriage in particular, the security for the future life, so on and so forth. Talking in terms of the mediation for matrimonial disputes one must remember that the factors that weigh the decisions of the parties are not controlled simply by rational factors.
Problems In Matrimonial Disputes
Various types of matrimonial disputes are found which are as follows , though these are very few reasons like :-
- The most common problem is where ego clashes amongst the two partners to a marriage where for every petty thing each of the two partners finds fault with the other and there are no real issues yet a constant threat to peace, thus in such a case the mediator must try to evolve a clear picture of notional profile of the parties to help them to discover a common ground of their dispute and involve the parties into a dialogue.
- One of the reason for matrimonial dispute is behavioral disorder i.e use of violence or abusive language, lack of concern by one party etc and these are basically a part of nature and character of a person which is bound to show its effect on relationship between husband and wife. Thus in such case the mediator or some professional must try to persuade the addictive person for behavioral modification.
- One of the reason for matrimonial dispute is psychological problems where one of the party to a marriage has the habit of doubting the other party, or always desire to guide and interrupt the other party in his way of doing work giving rise to constant frictions. Thus in such case the addictive party must be referred to specialist in case if suspicious are of pathological in nature.
- One of the common ground for dispute arises when the partners to a marriage think that their economic and financial needs are not being satisfied and as a result they might opt for illegal means to earn more which give rise to cases such as asking for dowry, extra marital affairs etc and also. Thus in such cases the mediator’s role is to see as to how to persuade the parties to make them understand each other’s situation and adjust accordingly ,largely depends on his creative intelligence.
- There are many cases where sacrifice and adjustment demanded of the other partner is greater than in usual situation like in cases of armed forces jobs, husbands have to stay far away from home, for months. One party may have to perform night duties etc. as a result they are unable to devote time to their partner. In such situation lack of loyalty, makes it difficult for the parties to co-exist. Best example here can be Napoleon where despite of being the most faithful husband both of his marriage failed.
- One of the most prevalent reason for failure of marriages is lack of physical compatibility and other medical reasons like problems of mental disorder in one of the two parties or the wife being sterile, here the other parties may either resort to have extra marital affair or doing another marriage etc. Here the skill of the mediator would be great asset in helping the partners to understand each other’s compatibility and accordingly take their decision.
- There are many other reasons causing rifts in marriage like inappropriate match of couple like one being highly qualified got married to a illiterate, interruptions by relatives, partners trying to dominate each other etc.
Strategies adopted by a mediator in matrimonial mediation
The matrimonial mediation or counseling give best results when opted at pre- litigation stage as at this stage the allegations against each other are often vague and the parties are more likely to negotiate, forgive and forget bitterness against each other. After the litigations start the parties are more likely to put exaggerated allegations against each other in order to win the case which increases the feeling of enmity and abhor against each other thereby making it difficult for the parties as well as the mediator to settle the dispute amicably. Court attached conciliation should become a mandatory for all litigations whether under section 125 of the CrPC, 1973 for maintenance or for divorce , as now the magistrates make their own efforts to bring the parties to a consolidated settlement in family courts.
Coming to the strategies adopted by the mediator , the procedure of matrimonial mediation is not so complicated and is very settled, flexible and user friendly. It consist of the following stages :-
- Generally the mediation procedure starts with an Introduction session by mediator who informally talks with the parties to the dispute, explains about his position, experience and objectives ,advantages of mediation and disadvantages of court adjudication, and through this the mediator tries to gain the trust of the parties and motivate them to settle their dispute through negotiation.
- The mediator then takes the joint session where both the parties explain their respective sides including their claims, complaints etc. This helps the mediator to understand the problem and cause of dispute between the parties.
- The mediator then takes a private session for each party to the dispute so that all the confidential facts and problems which the parties were not able to share comfortably during joint session, could be known by the mediator and here he tries to assesses, persuade and guide the party about the pros and cons of difficult solutions.
- Then comes the closing session where the mediator along with the parties in dispute facilitates and tries to solve amicably their problem and enable parties to reach a mutually agreeable solution.
- The agreement laying the terms of settlement is to be signed by the disputants in the presence of the mediator and countersigned by the mediator. In case of court annexed mediation , the agreement is to be laid before the court and thereby passing the appropriate orders and in case of pre litigation mediation it is possible for the process to be conducted as conciliation.
As per M.C.P.C , the time limit to complete mediation process is 60 days but in special circumstances with the consent of parties the time limit can be exceeded by 30 days.
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