ROLE OF MEDIATION IN MATRIMONIAL DISPUTES

ROLE OF MEDIATION IN MATRIMONIAL DISPUTES
BY: AAHNA VASHISTHA
Marriage is seen as a sacred institution in the rich fabric of Indian culture, which is deeply entwined with
customs, values, and social expectations. This spiritual link transcends the individuals involved and becomes
a vital part of the fabric of families, communities, and society itself. The cultural significance of marriage in
India is derived from complex ceremonies, centuries-old traditions, and the weaving together of familial ties.
It symbolizes a sacred pact that carries the weight of social expectations and transcends the personal sphere.
But within this complex structure, disagreements and conflicts can surface, creating a strain that jeopardizes
the peaceful continuation of the married partnership. These disputes, which may result from social pressures,
personal disagreements, or cultural quirks, can rip the bonds of matrimony and call into question the integrity
of marriage.
However, In the middle of the various obstacles that couples and families may face, the role of mediation
comes into the picture, legally acknowledged for the first time through the establishment of the 1 “Industrial
Disputes Act, of 1947”, mediation becomes apparent as a transformational and essential tool that provides a
sophisticated and culturally aware method of resolving marital conflicts. As an alternative to courtroom
litigation, mediation offers couples a private, compassionate, and practical way to work through the complex
issues in their relationship and find amicable solutions. Additionally, mediation provides an atmosphere
conducive to understanding and compromise by promoting open conversation and active engagement from all
sides. By working together, the parties involved not only resolve the current issues at hand but also lay the
groundwork for better relationships and somewhat increase their sense of empowerment and control over the
outcome.
Mediation: “Tracing Its Historical Roots, Evolving Role, and Contemporary Significance"
The history of mediation in India is extensive, with its roots in customary and cultural conflict resolution
techniques. In the past, communities frequently looked to local councils, leaders, or elders to mediate and
settle disputes. Community cohesiveness, societal norms, and cultural values all influenced these unofficial
procedures. One example of a traditional type of mediation is the Panchayat system, which is still in place in
many parts of India. A community's respected members, known as panchayats, would arbitrate conflicts and
offer solutions based on regional norms and customs.

1 Mediation in family and matrimonial disputes (no date) Legal Service India - Law, Lawyers and Legal Resources. Available at:
https://www.legalserviceindia.com/legal/article-1715-mediation-in-family-and-matrimonial-disputes.html (Accessed:8
January 2024).

However, statutory frameworks were established, and with them came the current formalization of mediation
in a legal setting. Even though it was mainly concerned with arbitration, 2 “the Arbitration and Conciliation
Act of 1996 acknowledged mediation as a legitimate practice and gave it a legal foundation”. The recognition
of mediation as an acceptable alternative conflict resolution process in India represented a major advancement;
this Act was a significant step in that direction.
The addition of 3 “Section 89 to the Civil Procedure Code (CPC) in 1999” marked the beginning of the growth
of mediation as an Alternative Dispute Resolution (ADR) technique in India. Hon'ble Mr. Justice A M
Ahmadi, the Chief Justice of India at the time, spearheaded the efforts that resulted in this significant
modification, which went into force on July 1, 2002. “The Institute for the Study and Development of Legal
System (ISDLS) suggested ADR procedures and legislative changes to solve institutional backlogs in the
Indian judicial system.” The ISDLS was motivated by a nationwide legal exchange program with the ISDLS.
Following that, the CPC's Section 89 was amended in 2002 to encourage alternative dispute resolution (ADR)
techniques. However, “a number of attorneys challenged the revision, which resulted in the creation of the
Malimath Committee and the 129th Law Commission in response to their findings the Supreme Court ordered
courts to forward cases to other forums in the historic case of Salem Advocates Bar Association v. Union of
India”.
“Judges of the Supreme Court made major contributions that further accelerated the progress of mediation. A
Project on Mediation was launched in Delhi in 2005, and a Mediation and Conciliation Committee was formed
under the direction of Hon'ble Mr. Justice R C Lahoti. Furthermore In 2015, more mediation facilities were
opened at the Patiala court and the Karkardooma court complex”.
The most recent development is 4 The Mediation Act, of 2023, which highlights the importance of mediation
as a crucial conflict-resolution instrument in modern legal systems and indicates the continued commitment
to promoting alternative dispute-resolution processes. Though it falls short of acknowledging and upholding
agreements that took place outside of India, the Act adds measures for executing domestic mediated settlement
agreements. Importantly, the foundation of the Mediation Council of India was made, whose job it is to oversee
mediation organizations and mediators. Along with maintaining confidentiality and introducing rules for
mediator nominations, the Act also places time restrictions on mediation sessions. Furthermore, it aligns the
new mediation framework with already-existing statutes, such the Indian Contract Act.

2 Role of Mediation in Matrimonial Disputes | VIA Mediation Centre, VIA MEDIATION
CENTRE|ARBITRATION|MEDIATION|CONCILIATIONSERVICES, https://viamediationcentre.org/readnews/MTY5/Role-of-Mediation-
in-Matrimonial-Disputes (last visited Jan. 8, 2024).
4 Nishith Desai Associates Decoding the Mediation Act, 2023, NISHITH DESAI ASSOCIATES: NISHITH
DESAI, https://www.nishithdesai.com/NewsDetails/10748 (last visited Jan. 9, 2024).

Mediation & Mediator
Through the negotiation process of mediation, disagreeing parties can reach an amicable resolution to their
differences with the help of an impartial third party. It is distinguished by its emphasis on the concerned
parties, granting them the power to influence the course of the process. The main contention is that these
parties are entitled to determine how the entire process will unfold. 5 The third party, as mentioned, is the
mediator whose job is to assist and lead the conflicting parties to a mutually agreeable agreement by
encouraging their active participation,
Being the third party responsible for solving the conflict, the mediator assumes crucial roles and duties in
facilitating the resolution process. The process typically commences with the appointment of the mediator and
the coordination of meetings at a mutually agreeable time for the disputing parties. The guidelines and
structure governing the mediation are jointly determined by both parties during the initial meeting. To establish
a shared understanding of the mediation process, the mediator then provides a comprehensive outline of its
procedures. Throughout the mediation, the mediator plays a pivotal role in fostering transparent
communication, allowing all parties to articulate their perspectives on the core issues. The mediator's
responsibilities include maintaining objectivity, adhering to the code of conduct, and safeguarding the
confidentiality of the mediation sessions. Serving as a neutral facilitator, the mediator guides the parties
through the settlement process. Instead of expressing personal opinions, the mediator offers assessments and
potential solutions to assist the parties in reaching a mutually acceptable conclusion. This comprehensive
approach underscores the mediator's dedication to helping all parties achieve a just and satisfactory resolution.
Marital disputes and the need for mediation
Religious texts and the legal system, particularly in India, highly value the sanctity of marriage. Legal
viewpoints emphasize the sacredness of marriages, recognizing their importance in uniting not just the partners
but also their families. 6 Various legal safeguards are in place to preserve marriages because conflicts in this
realm are among the most fiercely contested adversarial trials, carrying significant implications for the family.
For the partners involved, marital arguments can be extremely painful and emotionally draining. The
breakdown of communication, unfulfilled expectations, and the erosion of trust contribute to a profound sense
of emotional anguish, making the situation difficult and frequently heartbreaking for those navigating such
conflicts. While the entire family is involved in these disputes, the impact on the kids is particularly
pronounced. Children often find themselves caught in the crossfire of their parents' arguments over child
custody and visiting rights, leading to significant emotional distress as they witness their parents involved in
legal battles.
Furthermore, children are significantly impacted by the practical components of family life disruption,
5 Roles and Duties of a Mediator | VIA Mediation Centre, VIA MEDIATION CENTRE|ARBITRATION|MEDIATION |CONCILIATION
SERVICES, https://viamediationcentre.org/readnews/MjM1/Roles-and-Duties-of-a-Mediator (last visited Jan. 9, 2024).
6 In India, matrimonial disputes most bitterly fought cases: Bombay High Court, INDIA TODAY,
https://www.indiatoday.in/law/high-courts/story/in-india-matrimonial-disputes-most-bitterly-fought-cases-bombay-high- court-
2358769-2023-04-12 (last visited Jan. 9, 2024).

potential migration, and changes in financial security, in addition to the emotional effects. Marital conflicts
extend beyond the direct couples involved, creating sorrow and turmoil that reverberates across the family
and presents a challenging atmosphere for kids to grow up in. Hence, families and partners must prioritize the
well-being of all family members and work toward amicable resolutions, considering the collateral damage to
the children.
Now the question is how does mediations helps?
First and foremost, communication is essential in all relationships, and this narrative seamlessly connects to
mediation's transforming potential. Through communication and negotiation support, mediation gives
freedom to the parties to create their own solutions in a private, non-adversarial environment. And The
significance of trying reconciliation and mediated agreements prior to resorting to adjudication is emphasized
by 7 “Sections 5 and 6 of the Family Courts Act of 1984 as well as other legal regulations like Section 89 and
Order XXXII-A of the Civil Procedure Code. The Hindu Marriage Act's Section 23 further highlights the
judge's responsibility for promoting reconciliation”
Due to the intimate and delicate nature of family and marital problems, people frequently find it difficult to
open up to a third party. In this situation, building trust and fostering an atmosphere where parties to a dispute
feel comfortable airing their complaints are key roles played by the mediator. It is the mediator's job to get the
facts from both sides, rephrase them succinctly, and concentrate on the real areas of contention. Contrary to
disagreements over business or property, marital conflicts are specific to marriage and include things like
feelings, obligations, and the institution of marriage. 8 In addition, the mediation procedure could also employ
specialist mediators, such as financial planners or attorneys for financial difficulties and mental health
specialists for emotional and social issues. All aspects of the disagreement are sufficiently addressed thanks
to this customized strategy.
Families that accept mediation can resolve disputes in a way that puts an emphasis on cooperative problem-
solving, good communication, and emotional health in order to create long-lasting peace and stability.
Furthermore, Mediation's collaborative approach reduces the likelihood of adversarial dynamics and enables
parties to strive toward mutually agreeable resolutions. In order to ensure a more secure foundation for dispute
settlement, mediation acknowledges that emotional and social concerns must be addressed before focusing on
financial and legal factors.

7 Role of Mediation in Matrimonial Disputes | VIA Mediation Centre, VIA MEDIATION
CENTRE|ARBITRATION|MEDIATION|CONCILIATIONSERVICES, https://viamediationcentre.org/readnews/MTY5/Role-of-Mediation-
in-Matrimonial-Disputes (last visited Jan. 9, 2024).
8 The Value of a Psychologist Mediator, MEDIATE.COM, https://mediate.com/the-value-of-a-psychologist-mediator/ (last visited
Jan. 10, 2024).

"Strategic Consideration: Opting for Mediation Before Court Proceedings"
As of 9 July 2023, the enormous backlog of more than “5.02 crore cases are still pending at different levels of
the Indian judiciary that continues to be a significant obstacle. The Subordinate courts are currently handling
87.4% of these matters, and the High Courts are burdened with the remaining 12.4%. With such a massive
backlog, choosing mediation over litigation seems like a sensible way to ease the burden on the court system.
Compared to traditional litigation, mediation is more productive and economical because of its quick and
cooperative process. By using mediation as the method of resolving disputes, parties can deliberately lessen
the load on the already overworked courts and promote a quicker and more efficient administration of justice.
CONCLUSION
In conclusion, “Abraham Lincoln's wisdom of avoiding litigation and encouraging compromise is represented
in the idea that mediation in India offers a potential path toward advancing equity and justice within society”.
The objective communication and bargaining strategies of mediation can be used to successfully manage the
inevitable disputes that arise in relationships, particularly in the intricate fabric of marital dynamics.
10 Government activities are vital in promoting alternative dispute resolution (ADR) methods, mandating
legislation promoting a collaborative rather than adversarial approach to conflict resolution. Despite progress,
the passing of the Mediation Act in 2023 is a significant step, marking an efficient stride toward
institutionalizing mediation as a preferred method for conflict resolution. More widespread recognition and
active promotion of mediation's advantages are essential to realizing its full potential in Indian society.
Spreading the word about the advantages of mediation is still difficult and necessitates forceful action as well
as the active participation of legal experts. Further Mediation provides a glimmer of hope for couples resolving
marital conflicts and can help preserve and improve social relationships by revolutionizing the field of conflict
resolution. With divorce cases rising to never-before-seen levels, mediation stands out as a kind and
sympathetic substitute that helps parties reach mutually beneficial agreements and represents the value of
maintaining marriage relationships and social harmony.

9 Cases pending in courts cross 5-crore mark: Govt in Rajya Sabha, THE ECONOMIC TIMES,
https://economictimes.indiatimes.com/news/india/cases-pending-in-courts-cross-5-crore-mark-govt-in-rajya-
sabha/articleshow/101993830.cms?from=mdr (last visited Jan. 10, 2024).
10 Mahantesh G. S et al., Mediation In Matrimonial Disputes: A Judicial Perspective, Volume 19, Number 2, WEBOLOGY (ISSN:
1735-188X) 7, XXXX (2022).