ANALYSIS OF DIVORCE MEDIATION

AUTHOR: TANYA, STUDENT, NEW LAW COLLEGE, BHARATI VIDYAPEETH (DEEMED TO BE) UNIVERSITY, PUNE.

ABSTRACT

The article talks about divorce through mediation where the parties do not need to go to lawyers and have to go through litigation to get divorce instead a neutral party can be appointed by the parties and thus discuss their problems with them, who will accordingly provide them the solutions and the parties can seek divorce. Nowadays spouses prefer to go for mediation instead of going for litigation. Therefore, it is a growing alternative to settle disputes. Thus the objective behind this research is to highlight the importance of mediation in the legal framework and how it has reduced the burden on litigators.

This research highlights why the parties to divorce should go for mediation instead of going for litigation.

INTRODUCTION

Mediation is familiar to most people as a means of resolving labor management and international disputes, but it also has been used to settle contract, interpersonal, human resource, and EEO conflicts. Mediation involves the intervention of a third person, or mediator, into a dispute to assist the parties in negotiating jointly acceptable resolution of issues in conflict. The mediator meets with the parties at a neutral location, where the parties can sit and discuss the dispute to explore a variety of possible solutions. Each party is encouraged to be open and candid about his or her point of view. In this way, the mediator, as a neutral third party, can view the dispute objectively and assist parties in considering alternatives and options that they might not have considered. The mediator should be neutral because he or she does not have direct interest in the terms and conditions of settlement, neither is he or she being partial because he or she does not have a presupposed bias of how it should be solved.

WHAT IS DIVORCE MEDIATION?

Divorce mediation is a process where separating married couples meet with a trained mediator to hash out their post-divorce settlements. Most divorce settlements include arrangements for finance, property and children. Instead of each spouse selecting their own solicitor to fight their corner, the divorcing couple collaborate with a neutral mediator to reach sustainable solutions without involving the courts. Both sides are presented with the opportunity to go over divorce plans and any outstanding issues with the guidance of an impartial middle person. A divorce mediator usually has a background in family law, guiding each party on the legal rights and responsibilities. It provides each party with the information they need to arrive at fair and workable settlements that will stand up in a court of law.

WHY TO CHOOSE DIVORCE MEDIATION

Nowadays the couples prefer to go for mediation instead of going for the trials in care of divorces because of the following reasons:

1. Mediation is cost effective, it is quite less expensive than the trials. One has to pay quite a large sum in case of divorce through the trials

2. Mediation results in the settlement of the cases or the issues in a divorce.

3. It maintains the confidentiality of the spouses, there is no public record of what is going on in the sessions.

4. One can arrive at the decisions freely in a mediation whereas in case of trial the decisions are completely based on the judges. It does not give a solution to be imposed on the parties to the divorce instead they can decide mutually what conclusion they want to arrive at.

5. The overall control is in the hands of the spouses and not in the hands of the court . Thus, mediation provides you control over the decisions you make.

6. Mediation is meant to encourage communication between the spouses so that they can solve their conflicts and get the relief they want.

HOW DIVORCE MEDIATION TAKES PLACE ?

In case of divorces, mediation takes place when a third party also known as a mediator helps the spouse to resolve their matters and guide them by providing them open communication, faster understanding and make them mutually agree on the solution derived out of the communication. The following is the process to carry out the mediation process in case of divorces:

1. Both the parties to the divorce must mutually agree to solve their conflicts through mediation. There should be voluntary cooperation from both parties. A willing participation is the primary requisite for divorce mediation.

2. Now the parties after mutually agreeing to solve their matrimonial conflicts through mediation, must hire a mediator who will act as a third party between them and provide them with the legal knowledge. The mediator can be chosen with or without legal guidance.

3. Now the process of mediation begins with the introduction of the mediator, where the mediator will introduce himself to the parties and explain the parties about the mediation process. Thus, it will be an initial session for the parties.

4. Now the issues of the parties will be discussed with the mediator where the spouses will have an open conversation and share their concerns and feelings with the mediator.

5. After listening to their problems and feelings, the mediator will provide them with the potential solutions and even guide them to the compromises.

6. After providing them with the possible solutions, the spouses negotiate with each other and arrive at mutually acceptable options. They agree on the negotiated options available and then arrive at one.

7. After negotiation and arriving at the conclusion, the written agreements are made and other such documentations are made.

8. If required, then follow up sessions of the parties are conducted to address such issues which have not been resolved or discussed or that have not been agreed. This is not a mandatory step, if required then only the sessions are conducted.

9. This mediation process concludes where the parties have actually resolved their conflicts or issues which they have earlier come up with.

LEGAL PROVISION FOR DIVORCE MEDIATION

The law also provides provision for divorce through mediation under Section 89 of CPC

89. Settlement of disputes outside the Court.--(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a possible settlement and refer the same for:--

(a) arbitration;

(b) conciliation;

(d) mediation.

(2) Were a dispute has been referred--

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall .apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

Section 23(2) and (3) of the Hindu Marriage Act, 1955 describes:

(2)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), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.

(3)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, effected and the court shall in disposing of the proceeding have due regard to the report.

Section 34(3) and (4) of the Special Marriage Act lays down:

(3) 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 proceeding 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, effected and the Court shall in disposing of the proceeding have due regard to the report.

(4)In every case where a marriage is dissolved by a decree of divorce, the Court passing the decree shall give a copy thereof free of cost to each of the parties.

These are some of the rules laid down under the Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003, which defines the concept of mandatory mediation and covers family conflicts, including matrimonial disputes.

CASE LAWS

Srinivas Rao v. D.A. Deepa

The court decided that mediation must occur before a marriage can be ended by divorce. While the apex court has directed the criminal courts that when a case under Section 489A IPC happens to be found, please do not deal with the complaint unless it has been referred to the mediation centers. But, in some other rude cases when particularly extreme cruelty exists to a dangerous level, criminal courts may take the case without referring it to the mediation centers.

S Krishna Murthy vs. B.S Nagaraj and Ors

In this case, Justice Markanday Katju held that lawyers should advise their clients for mediation, especially where the dispute is family in nature. Otherwise, the litigation goes on for years and decades which is detrimental to both parties.

Rao vs. L.H.V. Prasad

In this case, the court held that marriage is a child-centric heterosexual institution in our society. However, if marriage as a unit breaks down, the adjustments of various relations are required rupturing the usual structure and peace of the family. So, the family laws and courts mostly encourage matrimonial disputes for reconciliation and settlement by amicable agreement instead of litigation.

Salem Bar Association v. Union of India

Impugning Amendment 46 of the Code of Civil Procedure, the Amendment 22 of the Code of Civil Procedure, Writ Petitions were filed. For various reasons, the attention of the Hon’ble Supreme Court was Towards Section 89 of the Code of Civil Procedure.

The Hon’ble Supreme Court further reiterated the need for promotion of Alternative Dispute Resolution. It thus regarded Section 89 as a welcome measure. Hence, it was recommended by the Hon’ble Supreme Court that a Committee be formed to ensure that the amendments made to the Code of Civil Procedure are brought to force and also serve the purpose of expeditious disposal of justice.

In one of the cases, the SC gave a very impactful judgement regarding the divorce petitions in India:

In a civil transfer petition moved by the petitioner-wife praying for transfer of the petition filed by the respondent-husband under Section 9 of the Hindu Marriage Act, 1955 pending before the Family Court, Varanasi, U.P. to the Family Court, Pune, Maharashtra, the three Judge Bench comprising BR Gavai, S.V.N. Bhatti and Sandeep Mehta, JJ. the powers conferred under Article 142 of the Constitution, granted the decree of divorce and dissolved the marriage.

Thus, the Court held that the matrimonial tie between the spouses had broken down irretrievably and that there was no possibility of reconciliation and reviving the spousal relationship. Accordingly, the decree of divorce was granted and the marriage was dissolved exercising powers under Article 142 of the Constitution of India.” The Court held that the husband had to pay the remaining amount to the wife as per the settlement.

DUTY OF THE COURT

Section 9 of the Family Act, 1984 describes the duty of the court in providing mediation to the [aries in case of any matrimonial dispute:

Duty of Family Court to make efforts for settlement.—

(1) In every suit or proceeding, endeavour shall be made by the 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.

(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such a period as it thinks fit to enable attempts to be made to effect such a settlement.

(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.

The section clearly defines that people seeking remedies in matrimonial disputes should go through the mediation process first.

Thus, there should be a mediation procedure before opting for litigation and thus the parties must try to solve the conflict through mediation first.

CONCLUSION

One of the quickest and easiest ways to solve matrimonial disputes is through mediation, where the spouses taking divorce by mutual consent resolve their issues by selecting a mediator. It is thus a form of negotiation. The courts these days have a specialised ADR centre where the people can easily get legal remedies by not going for litigation and resolving their issues by the way of Arbitration, Mediation and Conciliation.

The mediator here attempts to bridge the gap between the spouses and try to preserve their marriage since their first duty is to preserve the marriage and still if the parties are stubborn enough gyi get divorce, then the mediators solve their conflict through the mediation process. Therefore, it is one of the easiest ways to resolve matrimonial disputes.