MEDIATION IN DIVORCE

THE CONCEPT & ITS EFFICACY OF ALTERNATIVE DISPUTE RESOLUTION: -

“It is the spirit and not the form of law that keeps the justice alive.” LJ Earl Warren. The concept of Conflict Management through Alternative Dispute Resolution (ADR) has introduced a new mechanism of dispute resolution that is non-adversarial. A dispute is basically ‘lis inter partes’ and the justice dispensation system in India has found an alternative to Adversarial litigation in the form of ADR mechanism.

New methods of dispute resolution such as ADR facilitate parties to deal with the underlying issues in dispute in a more cost-effective manner and with increased efficacy. In addition, these processes have the advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case. The resolution of disputes takes place usually in private and is more viable, economic, and efficient. ADR is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation.

NEED OF ADR IN INDIA:-

The system of dispensing justice in India has come under great stress for several reasons mainly because of the huge pendency of cases in courts. In India, the number of cases filed in the courts has shown a tremendous increase in recent years resulting in pendency and delays underlining the need for alternative dispute resolution methods. It is in this context that a Resolution was adopted by the Chief Ministers and the Chief Justices of States in a conference held in New Delhi on 4th December 1993 under the chairmanship of the then Prime Minister and presided over by Chief Justice Of India. It said: "The Chief Ministers and Chief Justices were of the opinion that Courts were not in a position to bear the entire burden of justice system and that a number of disputes lent themselves to resolution by alternative modes such as arbitration, mediation and negotiation. They emphasized the desirability of disputants taking advantage of alternative dispute resolution which provided procedural flexibility, saved valuable time and money and avoided the stress of a conventional trial".

In a developing country like India with major economic reforms under way within the framework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on the courts and to provide means for expeditious resolution of disputes, there is no better option but to strive to develop alternative modes of dispute resolution (ADR) by establishing facilities for providing settlement of disputes through arbitration, conciliation, mediation and negotiation.

Alternative dispute resolution (ADR) (also known as external dispute resolution in some countries, such as Australia) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR is generally classified into at least four types: arbitration, conciliation, negotiation, mediation.

Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonisation mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement.

Due to extremely slow judicial process, there has been a big thrust on Alternate Dispute Resolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely Indian approach.

WHAT IS MEDIATION?

Mediation is not something new to India. Centuries before the British arrived, India had utilized a system called the Panchayat system, whereby respected village elders assisted in resolving community disputes. Such traditional mediation continues to be utilized even today in villages. Also, in pre-British India, mediation was popular among businessmen. Impartial and respected businessmen called Mahajans were requested by business association members to resolve disputes using an informal procedure, which combined mediation and arbitration.

Another form of early dispute resolution, used by one tribe to this day, is the use of panchas, or wise persons to resolve tribal disputes. Here, disputing members of a tribe meet with a pancha to present their grievances and to attempt to work out a settlement. If that is unsuccessful, the dispute is submitted to a public forum attended by all interested members of the tribe. After considering the claims, defences, and interests of the tribe in great detail, the pancha again attempts to settle the dispute. If settlement is not possible, the pancha renders a decision that is binding upon the parties. The pancha's decision is made in accordance with the tribal law as well as the long-range interests of the tribe in maintaining harmony and prosperity. All proceedings are oral; no record is made of the proceedings or the outcome. Despite the lack of legal authority or sanctions, such mediation processes were regularly used and commonly accepted by Indian disputants.

Mediation bears a striking resemblance, in some respects, to the ancient dispute resolution processes. In mediation the parties are encouraged to participate directly in the process. The expanded framework of discussion in mediation consists of both the applicable law and the underlying interests of the parties.

The mediator, an expert in the process of dispute resolution, controls the proceedings, much like a tribal chief serving in the role of peacemaker. But under the ancient methods if mediation failed, the same person was authorized to render a binding decision. In India, while judges have been quick to recognize increased use of mediation as a helpful mechanism for reducing case backlogs and delays, Indian lawyers have not rushed to embrace mediation. As with American lawyers in the early 1980's, Indian lawyers are conservative. They do not like change and are reluctant to expose their clients to the uncertain risks of an unknown ADR process. Also, understandably, Indian lawyers view mediation as potentially depriving them of income by settling cases prematurely and thereby obviating legal fees that would otherwise be earned. The same has been true for American lawyers during the growth of mediation in the US over the last twenty (20) years. In the first place, by their early acceptance and use of mediation, lawyers became not only the best trained and most qualified mediators (incorporating their mediator work into their law practices), but the lawyers who did not become mediators became the gatekeepers for mediation, selecting over 80% of the cases that are mediated and choosing the mediators for such cases.

Mediation is an informal dispute settlement process run by a trained third party, called a mediator. Mediation is intended to bring two parties together to clear up misunderstandings, find out concerns, and reach a resolution. The process is voluntary. During the mediation, each side will present its view of the issue, and the mediator will work with each side to attempt to work out a settlement. At the end of the process, the mediator can present his or her findings and present a potential solution to the issue. The mediation process, unlike arbitration, is non-binding; that is, the mediator does not impose a decision on the parties, but he/she attempts to present a solution that is acceptable to both parties.

Mediation can be used in divorces, real estate, and labour bargaining, and in other disputes, in an attempt to avoid taking a case to court.

Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters. The mediator acts as a neutral third party and facilitates rather than directs the process. Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement. Much depends on the mediator's skill and training. As the practice gained popularity, training programs, certifications and licensing followed, producing trained, professional mediators committed to the discipline.

THE ADVANTAGES OF MEDIATION

There are various advantages of mediation which can be used in divorces, real estate, and labour bargaining, and in other disputes, in an attempt to avoid taking a case to court. Some of them are cost, confidentiality, control, mutuality, compliance and support.

Cost-while a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs. Confidentiality—while court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the mediators know what happened. Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened

CONTROL—Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jury cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.

COMPLIANCE—because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law.

MUTUALITY—Parties to mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to "move" their position. The parties thus are more amenable to understanding the other party's side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.

SUPPORT—Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process.

PROCESS OF MEDIATION

But this process is informal and not binding and the parties may deviate from this process and follow some other process of their own choice.

The mediator begins by welcoming the parties and introducing himself/herself. The mediator then outlines the process and the roles of the mediator, the parties, and attorneys (if present). The mediator ends the introduction by explaining the ground rules for the process. The mediator then asks for statements from each party. Both parties have an opportunity to tell their story about what happened, from their viewpoint. Often, these stories are emotional. The mediator may ask clarifying questions, but typically the parties do not question each other. After both parties have spoken, the mediator may ask more questions, both to clarify the issues and to provide the other party with greater understanding. At this point, the mediator may ask the parties to (separate for the purpose of discussion). The mediator talks with each party, proposing solutions, trying out scenarios, trying to get commitment to a settlement by both parties. The mediator goes back and forth between the parties during this time, clearing up misunderstandings, and carrying information, proposals, and points of agreement.

MEDIATION IN DIVORCE

Nowadays, for significant portion of adult and youngsters marital and family relations are neither straightforward nor stable. Within the US, in line with the recent researches 13.8 million children, twenty five% of those underneath the age of eighteen, are living with only one parent and another 5 million kids in two folks homes live with a biological parent and a step parent. And it's a clear estimation that 0.5 of the marriages can end up in divorce. People prefer to file suits in courts for divorce etc. and it takes a lot of time as many cases are pending in the courts in India, a country where everyday cases of domestic violence and quarrels are seen in every 2 people out of 10.Therefore, instead of wasting so much of time by going through court formal proceedings a person can go to a mediator for settling disputes. These days, as mediation is very common, some states of the US have quite constant and broad use of divorce mediation e.g. Taxes and Connecticut. To save time and energy, it is necessary that alternative like mediation should be adopted in large number which is the best method.

There are higher ways to realize settlement. Divorcing couples should consider their choices in a constructive and progressive manner starting with the least hostile approach, divorce mediation. Because the family problems are changing into intensive, likewise divorce has become thus terribly common. And therefore every concerned one is in the hunt for an effective a approach-out. A divorcing couples knows that divorce simply does not finish everything concerning a wedding, though it ends the legal contract between a husband and a wife but, it shatters the household that was based on that marriage. It conjointly cannot break the link that the youngsters of the marriage create simply by existing. Mediation, conjointly known as “different dispute resolution" may be a method by which an impartial third person (generally additional than one person) helps two discordant parties to resolve dispute through a mutual concession and face-face negotiation. A mediator could be a trained skilled who does not force rather assists the parties in their own negotiation while not creating choices for the parties. A mediator rather facilitate the parties understand what is happening to them and encourages them to barter in sensible faith that brings fruitful leads to future.

Mediators most usually are appointed by the court, typically with agreement by the lawyers for both sides. Mediators come back in many varieties. A number of them are professional personal mediators, many of whom are lawyers. They eliminate the requirement for a jury trial regarding ninety percent of the time. Others are volunteer mediators and several of them are retired attorneys or non lawyers trained by Dispute Resolution Services. It's a method in which the parties and their attorneys agree to resolve all issues in an environment of cooperation, honesty and integrity without being engaged in adversarial techniques in or out of court.

The final benefits and benefits argued to be seen as a result of divorce mediation embody:-

1. Each the parties are liberated to air their concern.

2. A neutral person assists each the parties.

3. The approach is always non-adversarial.

4. Both the parties have management over the outcome.

5. The prices are cut to a nice extent.

6. Nobody's privacy is hurt.

7. A settlement agreement per the family's wants

8. Avoidance of litigation.

DIVORCE MEDIATION MIGHT NOT BE ACCEPTABLE FOR BOTH THE SPOUSES UNDERGOING THE PROCESS. IT HAS SEVERAL DISADVANTAGES STILL:-

1. The opposite spouse may not cooperate and you can't force him/her.

2. The opposite party could try to show dominance over you and here a court lawyer can solely offset the imbalance.

3. The opposite spouse may frighten or threaten you, and once a spouse is afraid of personal safety, the participation interest drastically drops down.

4. Others argue that the decrease in the value of mediation and the upper fee of lawyers is due to their high expertise in the sector and solely they can higher predict the appropriate outcome of the case.

Therefore, every divorcing couples should try to settle down their marital issues within themselves. If they cannot go that manner a minimum of they need to not hide anything from one another and should bear the mediation process resulting in a conclusion. In circumstances, things goes out of hand and both the spouses cannot reach to conformity, the traditional adversarial approach might be a final resort (bearing the prices in mind).

Despite substantial support for divorce mediation disadvantages do exist. Divorce mediation might not be acceptable for both the spouses undergoing the process. It has several disadvantages such as the opposite spouse may not cooperate and you can't force him/her. The opposite party could try to show dominance over you and here a court lawyer can solely offset the imbalance.

The opposite spouse may frighten or threaten you, and once a spouse is afraid of personal safety, the participation interest drastically drops down.

Others argue that the decrease in the value of mediation and the upper fee of lawyers is due to their high expertise in the sector and solely they can higher predict the appropriate outcome of the case.

The family court law also empowers the family court to consider alternative modes of reconciliation between couples, including mediation, which could result in couples getting back together or parting ways amicably by mutual consent. If the mediation results in the couple dropping their acrimonious charges and if in the meantime six months have elapsed, then the family court cannot insist on waiting another six months before granting divorce by mutual consent.

INITIATIVES AT NATIONAL LEVEL TO INCREASE MEDIATION AS A MODE OF SETTLEMENT

1. NEW MEDIATION CENTERS RELIEVE COURTS AS CASES INCREASE IN KASHMIR

As population, education and awareness of rights increase throughout India, so does the number of court cases here. To help assuage the backlog of cases, the government is establishing mediation centers, a phenomenon that has recently spread to the state of Jammu and Kashmir. SRINAGAR, KASHMIR, INDIA is sitting under the shadow of a gigantic chinar tree in the court complex in Lal Chowk, a downtown city square, a woman in her mid-30s anxiously awaits her turn at one of Kashmir’s new mediation centers. The woman, whose last name is Begum, is accompanied by her stepfather, who is also her paternal uncle. Says she they are waiting for their village head, who has volunteered to speak at the mediation on her behalf. In the meantime, Begum’s husband, the other party in the dispute, enters the mediation center to give his side of the story. As he discusses their marital issues with the mediator, his wife barges into the room and interrupts him. Sofiya Muzamil, the mediator, asks her to stop. “This is a routine affair here,” says Muzamil, who is also an attorney. “Often parties in dispute engage in verbal brawl. Sometimes they turn violent and same leads to a scuffle between them. In latter case, police is to be called in. ”Muzamil says that after both parties meet with the mediator, there are joint and individual follow-ups.

“Various sessions – joint and individual – are held to resolve matter amicably,” she says. “Feasible options are explored.”

The Begums are at the mediation center to discuss their marriage. They were married 12 years ago, and the husband is angry that they still don’t have any children, Muzamil says. “Her husband pleads it as one of the grounds for divorce, whereas Begum says her mother-in-law ill-treats and harasses her,” Muzamil says. Rebutting these allegations, the husband retorts that his wife is short-tempered, which leads to frequent disputes.

Abdul Rehman, the village head here to speak on behalf of the wife, tells the mediator that the case came before a local village committee a few years ago. The committee asked the husband to pay her five lakh rupees ($9,100) as compensation because he wanted to divorce her.

“But he didn’t agree,” Rehman says. “He said that he can pay one and half lakh rupees only, but that wasn’t acceptable to us. I wanted the same to be a deterrent for others. Then a case was filed in court, where it lingered for years.”

He says that they eventually opted for mediation to hasten the resolution process. “During this time around, we came across mediation center, which is believed to lead towards speedy justice,” he says. “We expect early disposal of [our] case.”

The mediator says that she has explored various aspects of the dispute and listened to both sides.

“The matter isn’t finally resolved, but all factors are heading towards their divorce,” Muzamil says.

Citizens with more education and awareness of their rights are turning to the state’s newly operational mediation centers to hasten the judicial process. Because of a backlog of cases, courts send those concerning issues such as property and divorce to the rising number of centers. Mediators say the overall response of citizens has been favourable, though some lawyers call the process fruitless.

Although conception of the mediation centers in the state began in 2007, the first ones became operational last year. There are now 14 district mediation centers in the state, according to the annual report of the Mediation Monitoring Committee, which is responsible for their functioning.

2. DELHI MEDIATION CENTER

With an alarming increase in the number of couples heading for divorce in the Capital, judges have now stood up to save the sanctity of marriage. From advising the couple to give their marriage a second chance to making them understand the practicality of life, the judges are doing everything that can change the mind of the couple heading for separation.

The concept of mediation centres is rapidly gaining popularity, and with a success rate of 63%, this new role of the gravel-hammering judges has earned them accolades from everywhere. According to recent court figures, more than 1, 36,000 marriages take place every year while some 8,000-9,000 divorce cases are filed each year. In fact, an average of 10 cases is filed per day in just one court. However, the new Additional Dispute Resolution (ADR) method has given the judiciary a more humane approach in resolving the matter. Sample this: A couple which had filed for a divorce recently went back to give their marriage a second chance after attending sessions in the mediation centres. "The main problem with the couple was a communication gap as both were working. So, when they approached us, all we told them was to talk, be more expressive and resolve their issues over a cup of coffee. It worked for them and within 5 sittings, they decided to give it another shot," said a mediator judge who refused to be named.

Earlier, this wasn't the role of mediation centres. The case was generally forwarded to the civil courts if the couple was not ready to reconcile. However, the new ADR method involves an enhanced role of the judge. The centres have taken the help of ADJs to do the job of the mediators. In the mediation centre at Gole market, which comes under Delhi Legal Services Authority, there are five district and sessions judges, who meet couples everyday between 8am to 7pm. similar mediation centres can be found in Tis Hazari and Karkardoma. "The role of the judge in these mediation centres is not only to mediate between the couples but also to understand the dispute between the two parties and come up with an amicable solution," Sanjay Sharma, the project officer of DLSA, told TOI.

"Mediation in the context of matrimonial disputes is different in form and content from commercial and property disputes. So we give advice on things like motivation, sentiments, social compulsions, personal liabilities, and responsibility to solve the matter," said a mediator judge on the condition of anonymity.

The latest figures at the Tis Hazari mediation centre are encouraging. The success rate of settled cases in Tis Hazari is as high as 63% while at Karkardoma it's close to 60%.

"Out of 7,473 cases handled by the mediation centre in the past three years, 7,264 have been disposed of by now. About 4,605 cases have been settled successfully," informed Kapoor, the judge in charge of the mediation centre in Tis Hazari courts.

"Our main job is not to tell them what to do, but to mediate between the two parties. We motivate these couples to sort out their differences and the judges here try to talk to them about issues like personal liabilities and responsibilities to solve the matter," Kapoor added.

The judges at the mediation centres believe that the mindsets of the people have changed over the years. While earlier getting a divorce was considered the last resort for a couple, now they consider it their first option.

MEDIATION IN INDIA AS COMPARED TO MEDIATION IN UNITED STATES OF AMERICA

In the United States, lawyers and the local and state bar associations, as well as the American Bar Association and the Federal Bar Association, were as enthusiastic as the judges in their promotion and utilization of mediation. American lawyers understood that the legal system was overloaded and on the point of collapse from the courts being wrongly utilized for disputes that could be better and more efficiently handled by mediation and other ADR procedures. By the mid-1980's, lawyers and State Bar Associations had professionalized mediation in the US, by developing mediator training standards, by providing lawyer training in mediation and by prescribing ethical standards for lawyers when acting as mediators and when acting as advocates in mediation. As a result, trained lawyer mediators made mediation a substantial part of their law practice. By responding positively and emphatically to incorporate mediation as a welcome and useful ADR tool in the American legal system, lawyers have not lost business to mediation, but have rather become ensconced as mediators and as the gatekeepers for mediation in the US legal systems. In the US, although lawyers initially felt threatened by mediation and resisted it as an unwanted change in the status quo, the lawyers quickly realized that mediation was just another tool in their lawyer tool bag.

In India, while judges have been quick to recognize increased use of mediation as a helpful mechanism for reducing case backlogs and delays, Indian lawyers have not rushed to embrace mediation. As with American lawyers in the early 1980's, Indian lawyers are conservative. They do not like change and are reluctant to expose their clients to the uncertain risks of an unknown ADR process. Also, understandably, Indian lawyers view mediation as potentially depriving them of income by settling cases prematurely and thereby obviating legal fees that would otherwise be earned. The same has been true for American lawyers during the growth of mediation in the US over the last twenty (20) years. In the first place, by their early acceptance and use of mediation, lawyers became not only the best trained and most qualified mediators (incorporating their mediator work into their law practices), but the lawyers who did not become mediators became the gatekeepers for mediation, selecting over 80% of the cases that are mediated and choosing the mediators for such cases.

Private litigants, too, may harbour anxiety about mediation as an alternative to the court system. Fearful of exploitation, distrustful of private proceedings, comforted by the familiarity of the court system, insecure about making decisions about their own interests, or interested in vexatious litigation or in delaying the case for economic reasons, some litigants may prefer the lawyer-dominated, public, formal, and evaluative judicial process.

These impressions are inaccurate for a variety of reasons. First, mediation will not frustrate the preferences of such litigants; indeed, their right to trial will be preserved. An effective mediation process can quickly allay these fears. Litigants involved in the process are much less likely to be exploited. They will quickly understand that the mediator has no power or social control over them or their resolution of the dispute. Second, effective facilitators will gain their trust over time. Third, if the parties still feel the need for an evaluation of the legal issues, the mediation can be accordingly designed to deliver that service. At times, litigants can better save face with members of their family, community, or organization, if they can cast responsibility for the result on a neutral third party, and for this group, a strong evaluative process may be appropriate. While judges and the courts provided the initial impetus toward mediation in the United States, it was the lawyers' and law schools' acceptance of the court's challenge to find better ways of resolving disputes that lead to rapid and widespread acceptance of mediation in the United States. Globally, however, the explosion of mediation in Europe and in Asia is being spearheaded by corporations, as multi-national corporations ("MNC's") seek quicker, cheaper and less disruptive means for settling internal employer, management and shareholder disputes and external commercial disputes with trade and distribution partners around the world. At the first annual European Business Mediation Congress convened October 21-23, 2004 by CPR Institute of Dispute Resolution, 140 attendees (including representatives from most of the world's largest law firms) responded to a Survey on European Business Mediation indicating that 60% viewed MNC's as necessarily leading the charge in globalization of mediation, while, 25% viewed lawyers as the leaders, and only 7% viewed courts as the leaders in mediation on the international commercial scene. Now that major corporate clients have discovered mediation and are pushing for it, lawyers who resist the increased use of mediation in India will likely lose credibility with existing or potential MNC clientele. Once it is understood that mediation is intended to complement (not replace) the judicial process, that it is highly adaptable to different contexts, and that expertise in India is already growing rapidly, the apprehensions may quickly dissipate.

source:http://www.legalservicesindia.com/article/article/mediation-in-divorce-1424-1.html