MEDIATION IN FAMILY LAWS IN INDIA By Renika Yadav

Mediation is the effective alternative conflict resolving method where with the assistance of a third person (Mediator) the disputant parties reach a mutually satisfactory agreement through facilitating negotiations. It is a cost effective and non - adversarial method of dispute resolution with high efficacy. Resolving conflicts via mechanism of Mediation nowadays can be found not only in corporate law but also in family law.

Legislature provides numerous provisions for mediation, conciliation and settlement before litigation in the court. Section 89 of Civil Procedure of Code provides for alternative dispute resolution procedures to be followed in the cases where there is a possibility of a settlement. Section 9 of the Family Court Act, 1984 provides to settle a matrimonial dispute in relation to maintenance, child custody, divorces, etc., through the process of mediation. It is also mentioned to refer the parties in question to visit a Mediation Centre. These centers effectively lessen the burden of courts that are already dealing with a heavy backlog of millions of cases.  Similar provisions are provided in Section 23(2) of the Hindu marriage Act, 1955 where the first  duty of the court is highlighted consistently as per the nature and circumstance of case to make an effort to bring reconciliation between the parties adhering to their consent. The court may also adjourn the proceedings for a reasonable period and refer the matter for the purpose of reconciliation to a person at the desire of the party. However, if the non- adversely process is to be found unsatisfactory or unfair or where no settlement can be concluded, the legal and formal system can be approached by the parties.

In case of family and marital disputes the idea of bringing up the matter in the presence of a third party may seem hostile. Such cases include not only financial and legal aspects but also involve sentiments, emotions, psychological well being, personal liabilities and responsibilities etc. Mediation itself is an interest based procedure, encountering a situation constituting conflict of interest is unavoidable and it is hard to accomplish a win/win situation for both the parties. Engaging in dialogues and coming up with agreeable settlements considering the interests of the disputant parties can serve as a solution.

In cases of divorce, mediators play the crucial part. They must be thorough with their evaluative role and be competent enough to direct and guide the parties to achieve amicable solutions. Appointment of Mediator is done by the court by affirmation and conformity of the lawyers. Clients can be informed about ramifications and rights at every juncture of the proceedings before concluding to a decision by their lawyers, it reduces the possibility of unawareness.   Mediation sessions can also take place without the presence of attorneys as per the desire of the disputants, continuance of the mediation process shall be maintained until a final agreement is reached which can later be settled by their individual lawyers.  Instead of forcing options, a skilled Mediator can form a balanced ground providing both the parties with sensible choices that serve common interest for the both.  Especially in the cases involving child custody, where responsible decisions must be made maintaining the interest of not only the parents but also the child . Severe consequences can be avoided if the parents are made aware of the disruptive outcomes that may evolve and affect the child.

Through mediation divorcing couples can easily avoid the hostile approach and can come to a beneficial outcome by taking constructive and progressive approaches. Sometimes in a divorce situation the couple may focus on the revenge phenomenon or self-interested advances that delays fast resolution resulting in ongoing back and forth unfruitful conversations. Both the parties have freedom to express their concerns, they receive a neutral approach from the mediator, privacy remains intact, families can conclude the outcomes that they seek. Moreover, they can avoid litigation which may cost them relatively more and hence, it is cost- effective. Confidentiality is maintained contrary to the trial where the proceedings are part of the public record. Impartial balance along with substantial justice is another key factor that is maintained in the mediation processes. A considerable amount of success in countries that have developed a proper infrastructure for performing family dispute resolutions through mediation such as U.S.A, Australia, and U.K . India can also achieve substantial success rate if knowledge and importance of alternative dispute resolutions is emphasized more within the country.