Family plays a crucial role in any community or society. A family is an association as well as an institution. Not only economic needs but also, more importantly, the emotional needs of the members are taken care of in the family. Today, divorces and disputes over property inheritance are proliferating like never before. The reasons may vary from economic conditions to professional problems and psychological imbalances. The author of the article made a socio-legal study of the causes of the conflict in the family. It is important for the society to devise means of protecting the family and also preventing and resolving the disputes that could damage and destroy the delicate fabric of the family. The author suggests conciliation and mediation for the resolution of these disputes as these mechanisms offer multifaceted resolution advantages like objectivity, due focus on the issues, neutrality and independence. The author also gives an overview of various statutory frameworks in India supporting ADR mechanisms in family disputes.
There is a growing feeling among the legal experts, sociologists and psychiatrists that the use of The IUP Journal of Alternative Dispute Resolution (ADR) methods such as Mediation, Arbitration etc., must be encouraged in the resolution of family disputes. This school advocates the replacement of adversarial court system with a less formal interactive procedure by providing well organized supporting services such as family counselling services, reconciliation services, investigative services, legal aid services and enforcement services. Justice R C Lahoti, the Chief Justice of India, strongly endorsed the view that there are inherent weaknesses in the existing justice delivery systems which call for effective measures for strengthening the institutional processes. He also stressed the importance of the ADR mechanism, because the aim of ADR is to bring about a durable resolution of disputes and not to impose and enforce decisions. According to him, ADR mechanism especially mediation and reconciliation should play a major role in settling disputes, as it would save energy, time and money of the litigants, particularly in family matters.
Need for Mediation and Conciliation in family disputes:
Litigation does not always lead to a satisfactory result. It is expensive in terms of time and money[1]. Its adversarial nature does not change the mindset of the parties and ends up in bitterness. Alternative dispute resolution systems are not only cost and time effective; they preserve the relationship between the parties by encouraging communication and collaboration.
Maintenance of peace and harmony is the paramount consideration in resolving family disputes. Conciliation and mediation are old institutions and indeed they are deeply rooted in the social tradition of many societies, particularly in Asian culture and values. In India, family disputes were resolved by the elders of the family who acted as conciliators or mediators. Even today, elders of the family and in villages, the elder persons of the village have such a role. Panchayats also perform a similar function and are preferred by villagers over courts due to their easy accessibility and prompt dispute resolution[2]. The philosophy behind ADR is amicable dispute resolution and mediation is one such process that provides a space to the parties to sit down and focus on what they really want, rather than think what they need to seek or what the law will let them fight for[3]. Mediation is defined in Black’s Law Dictionary as “a private, informal dispute resolution process in which a neutral third party, the mediator, helps disputing parties to reach an agreement[4].” Family dispute mediation is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by promoting the participants’ voluntary agreement. The family mediator assists communication encourages understanding and focuses the participants on their individual and common interests. The family mediator works with the participants to explore options, make decisions, and reach their own agreements[5]. Thus the family mediator assists the participants to gain a better understanding of their own needs and interests and of the needs and interests of others.
References to mediation/conciliation in family dispute resolution can be found in the Family Courts Act, 1984, Civil Procedure Code, Hindu Marriage Act and the Legal Services Authorities Act, 1987 that recognizes and gives a special status to Lok Adalats that have been very effective in mediating family disputes. The Family Courts Act was enacted with a view to promoting conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith[6]. Conciliation, speedy settlement, non-adversarial approach, multi-disciplinary strategy to deal with family disputes, informal and simple rules of procedures and gender justice are supposed to be the cornerstones of the philosophy of the Family Courts[7]. The whole structure of family courts rests on the twin pillars of counselling and conciliation. The counsellors are required to not only provide counselling but to bring about reconciliation and mutual settlement whenever feasible. Section 9 (1) of the Family Courts Act states that “In every suit or proceeding, endeavour shall be made by Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.” While Section 9(2) directs the family court to adjourn the proceedings if it appears that there is a reasonable possibility of a settlement between the parties for such period as it thinks fit is necessary for taking the required measures for bringing about the settlement. These provisions, however, do not make mediation/conciliation compulsory.
Section 23 (2) of the Hindu Marriage Act, 1955 which contains similar provisions provides that before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties provided that nothing contained in this subsection shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii)[8], clause (iii)[9], clause (iv)[10], clause (v)[11], clause (vi)[12] or clause (vii)[13] of sub-section (1) of section 13[14]. It also states that, for the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, affected and the court shall in disposing of the proceeding have due regard to the report. Here again, there is no compulsion to go for mediation before taking recourse to litigation[15].
Similarly Section 89 of the Civil Procedure Code (Amendment) Act, 1999[16], directs the courts to identify cases where an amicable settlement is possible, formulate the terms of such a settlement and invite the observations thereon of the parties to the dispute. Where the Court comes to the conclusion that mediation is the appropriate mode of settlement, it may itself act as a mediator and “shall effect a compromise between the parties[17]”. The language of this section is mandatory in nature and it makes mediation compulsory.
Mediation/Conciliation is a very effective method of family dispute resolution. It is more attractive than litigation because it empowers the parties to devise an agreement which meets their specific needs[18]. It empowers the parties to choose alternative options which a court may not offer as a remedy, for example, separated couples arguing over custody of their children can formulate their own unique parenting plans. The emphasis in mediation is to find out a workable solution, unlike adversarial system which focuses on who is right and who is wrong and generally ends up in bitterness, thereby diversifying the capacity for resolving conflicts in society.
Progress in the way of making mediation and conciliation mandatory in family disputes
The development of mediation in the resolution of family disputes in India holds enormous promise, and will definitely strengthen the system’s capacity to deliver justice[19]. The Indian family is considered strong, stable, close, resilient and enduring. Mediation can help preserve this character of Indian family and reform and complement the formal dispute resolution mechanisms. Making mediation mandatory for resolution of family disputes will provide a tangible manifestation of the court’s commitment to a settlement seeking approach[20]. Also, it will reduce the backlog of cases while providing the parties with a healthy alternative. The Family Courts Act must be amended suitably and a compulsory mediation clause must be inserted. To maintain the voluntary nature of mediation, a provision may be made which requires the parties to record acceptable reasons before the court for not opting for mediation[21]. The Hindu Marriage Act may also be amended and mediation can be made mandatory except for the exceptions provided under Section 23(2).
To make the process of mediation fruitful, provisions may be made regarding standards to be followed during mediation proceedings. For this purpose a reference to Part III of The Arbitration and Conciliation Act, 1996 shall be very helpful specifically with regard to the role to be played by the conciliator. According to Section 67, the conciliator is supposed to act in an independent and impartial manner while facilitating an amicable settlement between the parties. And he is to observe objectivity, fairness and justice and has to give due consideration to the rights and obligations of both parties. Mediators facilitate communication and cooperation between the parties, they help them in identifying the issues, clarifying priorities, exploring areas of compromise and find points of agreement, resolution of family dispute requires therapeutic counselling as well, it is therefore imperative that mediators should be skilled[22], well trained and informed. Provisions regarding qualifications for a family dispute mediator can also be specified. Qualified mediators will also increase the credibility and popularity of mediation.
Provisions must also recognise local mediators because a local mediator who knows the local conditions and the parties may resolve the dispute in a much better way than a stranger. In the Indian context, such recognition will facilitate alternative dispute resolution as people are comfortable and satisfied when their stories are heard in an informal local process. If the parties find that the informal procedure is unfair or they are unable to reach a settlement, they can always approach the formal legal system, therefore compulsory mediation is safe enough. Compulsory Conciliation under Section 12 of the Industrial Disputes Act, 1947 has played a very vital role in establishing and maintaining industrial harmony by preserving relationships. The success of compulsory conciliation in resolving industrial disputes is another incentive for introducing the same for resolution of family disputes. Further, compulsory mediation in family disputes has had considerable success in countries like U.K. and Australia, who have a well-developed infrastructure for carrying on family dispute resolution by mediation, India must also make a similar attempt.
Conclusion
Mediation is a collaborative, party controlled, confidential, informed, impartial, balanced and safe, self-responsible and satisfying alternative dispute resolution mechanism. It offers a unique and dynamic resolution of disputes and preserves relationships. It is time to introduce compulsory mediation in family dispute resolution as it will not only reduce the backlog of cases but will also provide substantial justice to the parties particularly in the Indian context where the family structure is such that members of a family are too interdependent.
Frequently Asked Questions
1. When can family mediation or conciliation be used?
They can be used to resolve the entire range of family disputes either before a divorce takes place in order to consummate a marital settlement agreement, as well as after the divorce to resolve continuing disputes that might arise under a marital settlement agreement.
2. Should the attorney be present?
It is helpful for parties to have an attorney, whether or not the attorney participates in the mediation sessions. Parties will be advised by the mediator to seek advice from their attorneys and it is recommended that an attorney review the final settlement agreement. Mediators may not give legal advice to the parties.
3. Is the process confidential?
One of the advantages of mediation is that it is confidential. The emotional and perhaps embarrassing issues that are raised in divorce and child custody difficulties will be kept private, as opposed to a trial where all of the proceedings are part of the public record. They are also confidential, meaning that the process doesn’t become part of the public record as does a court tried divorce case. This is especially important when the mediation concerns children. The adversarial nature of a divorce trial can severely strain the ability of parents to communicate with each other and their children. Dealing with custody, visitation and child support in mediation can often short-circuit much of the bitterness and support positive family interaction. This can really help the children who usually want a close bond with both their mother and father.
Edited by – Sakshi Agarwal
Quality Check – Ankita Jha
Approved & Published by – Sakshi Raje
References:
[1] “The formal dispute resolution process is procedure oriented and therefore consumes a lot of time and money. ADR offers the flexibility of procedure and thus saves time and money.”
[2] See, Sharma, Dr M.K., J., “Conciliation and Mediation”, available at http://delhimediationcentre.gov.in/articles.htm.
[3] See, Sridhar M., Alternative Dispute Resolution: Negotiation and Mediation, p. 285, LexisNexis Butterworths (2006).
[4] Garner, Bryan A. Ed., Black’s Law Dictionary, Seventh Edition (1999), West Group, St. Paul.
[5] See, “Model Standards for Practice of Family and Divorce Mediation”, 39 Fam. & Conciliation Courts Rev. 121, available at Westlaw. See, Section 67 of Arbitration and Conciliation Act, 1996.
[6] See, Preamble, The Family Courts Act, 1984.
[7] See, Jamwal, N., “Have Family Courts lived up to expectations”, Mainstream, Vol XLVII No 12, March 7, 2009.
[8] Conversion to another religion.
[9] Unsoundness of mind.
[10] Virulent or incurable leprosy.
[11] Venereal disease in a communicable form.
[12] Renunciation
[13] Civil death.
[14] Grounds for divorce
[15] See, 59th Report of the Law Commission of India.
[16] “Read with Order X Rules 1-A, 1-B and 1-C, which are are applicable where at the first hearing of the suit the Court ascertains from each party or the counsel whether the parties admit or deny the allegations of fact as are made in the plaint or the written statement. After referring to the admissions and denials, the Court shall direct the parties to the suit to opt for either mode of the ADR as specified in Section 89 (1) i.e. Arbitration and Conciliation, Lok Adalat or Mediation.”
[17] “Section 89 lays down that where it appears to the Court that there exists an element of settlement, which may be acceptable to the parties; the Court shall formulate the terms of settlement and give time to the parties for their comments. On receiving the response from the parties, the Court may formulate the possible settlement and refer to either (i) arbitration (ii) conciliation (iii) Judicial Settlement including the settlement through Lok Adalat or (iv) Mediation. As per sub-section (2) of Section 89 as amended when a dispute is referred to arbitration and conciliation, the provisions of Arbitration and Conciliation Act, 1996 shall apply. When the Court refers the dispute to Lok Adalat for settlement by an Institution or person, the Legal Services Authorities Act, 1987 alone shall apply. It is only in the case of mediation that the Court itself shall effect a compromise and shall follow such procedure as may be prescribed by Rules made by the High Court under Section 122 read with Section 130 of the Code of Civil Procedure.”
[18] See, Section 73 of The Arbitration and Conciliation Act, 1996.
[19] Refer, “222nd Report of Law Commission of India- Need for Justice Dispensation through ADR”, available at, http:// lawcommissionofindia.nic.in/reports/report222.pdf
[20] See, “The Family Dispute Resolution Mechanism in England and Wales”, [2003] HKLRC 1, available at, http://www.hklii.org/hk/other/hklrc/reports/2003/03/4.html. See, “The Family Dispute Resolution Mechanism in England and Wales”, [2003] HKLRC 1, available at http://www.hklii.org/hk/other/hklrc/reports/2003/03/4.html.
[21] “A similar provision exists in the Family Laws Act, 1996 of England.” See, Ibid.
[22] “A mediator must be patient, attentive, reliable, neutral, persuasive, compassionate and wise.”
