Compulsory Mediation or Conciliation in Family Disputes

Family disputes are different from other disputes. There exists a very special relation between the parties which needs to be preserved. The backlog of cases and lethargy of judicial system leads to prolonged strain in relationship making them irreparable. To overcome this there has been a need to adopt alternate means of dispute resolution. Alternate dispute resolution mechanism has been recognised in the Code of Civil Procedure, 1908. Section 89 of the Code of Civil Procedure, 1908 provides for an option to the parties to resolve their dispute outside the Court. This method of dispute resolution though alternative in other cases should be made compulsory in the cases of family dispute. This ideology has been appreciated by the Supreme Court in the case of K. Srinivas Rao v. A.Deepa (2013) 5 SCC 226 where directions were issued by the Supreme Court to the lower courts and instructing them to resolve family disputes through the process of mediation in the first instance. The case was concerning Section 498A of the Indian Penal Code, 1860 but owing to the prolonged litigation period, the relation between the parties went beyond repair. The court also pointed that under Section 9 of the Family Dispute Act, 1984, it is the duty of the family court to make all efforts to settle the disputes through mediation or conciliation. In the case of Jagraj Singh v. Bir Pal Kaur  (2007) 2 SCC 564, the Supreme Court held that under section 23 of the Hindu Marriage Act, 1955,  the court is bound to make all attempts and endeavours of reconciliation between the parties seeking for divorce. The Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003 for different states in Rule 5(f) clearly states that if one of the party to the dispute opts for mediation or conciliation, the court shall give notice to the other party for the same and if it appears to the Court that there exist elements of a settlement which are acceptable to the parties and that the relationship between the parties which has to be preserved, in such cases the court should use its discretionary power and refer the matter to mediation or conciliation under rule 5 f(ii). Under Rule 5(g) if none of the parties have opted for arbitration, mediation or conciliation, the Court is empowered to send a notice and set a date for hearing on the question of referring it to mediation or conciliation. If the court finds that there exist elements of settlement acceptable by the party, it can refer to conciliation under rule 5(g)(i) or mediation under rule 5(g)(ii).  A very liberal discretion will lead to an increase to such mediation and returning of cases to court saying “no mediation done”. The Malimath Committee recommends to make it obligatory for the court to refer the dispute, after issues are framed, for settlement either by way of mediation, conciliation, arbitration or Lok Adalat.(reference 4)

India should adopt the mechanism of compulsory mediation in family disputes as done by countries like the United States of America, United Kingdom, Canada, Belgium and Greece. California has implemented mandatory mediation in family disputes where child custody and visitation is in issue. Mediation is a process where the parties are not forced into resolution rather they come together and reach a mutually agreeable resolution. Such an approach is necessary in cases of family disputes because of the unique relation between the two parties in the dispute. A family dispute may destroy the very basic structure of a family and society at large;  making it very important to preserve the relation. In a family dispute the child is affected the most. It is always better for the child that the parents mutually agree on certain terms rather than fight for custody in long court battles. The process of mediation provides an opportunity to the family members to understand the root of the problem and solve it while sitting across the table. This system is just to coerce the parties into mediation and not coerce them within mediation. If the mediation fails, the parties will always have the option to file a suit in the court. Thus, India should move a step forward by providing an adequate mechanism in protecting the valued family ties.

References:

  1. http://www.lawsenate.com/news/courts-to-settle-matrimonial-disputes-at-first-under-mediation.html
  2. http://www.lakshmisri.com/News-and-Publications/Publications/Articles/Corporate/conciliation-for-settling-family-disputes
  3. http://www.latestlaws.in/bare-acts/alternative-dispute-resolution-laws/arbitration-and-conciliation-act-1996/adr-mediation-rules2003/
  4. http://delhimediationcentre.gov.in/history.htm
  5. http://www.mediate.com/articles/WinestoneJ4.cfm
  6. http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199653485.001.0001/acprof-9780199653485-chapter-25
  7. http://www.mondaq.com/x/496342/trials+appeals+compensation/What+Is+Mediation+And+Should+It+Be+Made+Compulsory+For+Civil+And+Commercial+Disputes+In+Bermuda
  8. http://www.legalservicesindia.com/article/article/mediation-in-divorce-1424-1.html

http://law.galgotiasuniversity.edu.in/pdf/Mandatory-Mediation-in-India.pdf

 

Nikunj Poddar, Gujarat National Law University

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