Role of Mediation in Matrimonial Issues

 

    Role of Mediation in Matrimonial Issues

 

                                                            By- RAJAN GUPTA

 

What is Mediation:

Mediation is a form of alternative dispute resolution (ADR), aims to assist two or more disputants in reaching an agreement. Whether an agreement results or not, whatever the content of that agreement, if any the parties themselves determine rather than accepting something imposed by a third party. Mediators use appropriate techniques and skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effect) on the disputed matter.

Mediation is an informal, voluntary process in which a mediator facilitates negotiations between disputing parties. The mediator’s role is to help the parties find a mutually acceptable solution to the dispute. 

Mediation can be faster and less expensive than arbitration or litigation. If the parties agree to mediate, they will not give up any right to arbitrate or litigate if they cannot reach a satisfactory settlement.

Mediation has emerged as most widely accepted dispute resolution mechanism for settling matrimonial disputes. The problem arises when these includes cases of domestic violence.

 

Benefits of Mediation:

 

• Produces more satisfying result than litigation. There is no lose of time and money thus, it is an economical process.
• The normal life is not affected due to mediation. It gives flexibility to parties.
• Allows the parties and not the Judge, to determine the outcome. The parties are fully informed by the mediator and they control the terms of settlements.
• Increases participants satisfaction, with a greater likelihood of a lasting resolution.
• If settlement is reached in mediation, there will not be future litigation costs. Additionally, court fees are refunded to the parties.
• Eases tention and restores peace of mind.
• Develops the interest of the parties.
• Narrows the issues in dispute. 
• Protects confidentiality.
• Eliminates the risk of litigation.
• Allows clients to communicate their views, directly, informally, and confidentially without fear of retribution. Nothing said in a mediation can be used against a party if no settlement is reached.

 

Matrimonial Issues

Matrimonial issues are considered to be a private matters of the family and the parties don’t want that their private matters comes to the knowledge of the public and tried to sought the same by themselves or by seeking the help of the third party. From here the importance of mediation comes into the picture, now the parties seek to the mediator in order to resolve their disputes as in the court proceedings or in litigation their is no such kind of confidentiality.

 

Section 89 of Code of Civil Procedure, 1908

Section 89 of the CPC was introduced with a purpose of amicable, peaceful and mutual settlement between parties without intervention of the court. In countries all over the world, especially the developed few, most of the cases (over 90%) are settled out of the court. 

Section 89 does not impose a mandatory duty upon the court to refer the parties to conciliation, mediation merely because it is possible to resort to such methods in that particular case. The word shall is also used in order X of the CPC and it is observed that the court is under no compulsion to refer the parties to alternate means of resolving their dispute if it does not feel it.  

 

Provisions under Hindu Marriage Act &

Special Marriage Act

As per the provisions of Section 23(2) and 23(3) of Hindu Marriage Act, 1950 and Section 34(4) of Special Marriage Act, 1954, the Courts are directed to make an endeavour to bring reconciliation between the parties seeking divorce according to the facts and circumstances of a case. 

                Landmark Judgements

 

1. Afcons Infra. Ltd. Vs. Varkey Construction Co. Pvt Ltd.

 

Afcons Infra vs. Varkey Cons. Co. Pvt Ltd. Is one of the most famous cases dealing with mediation. It is a landmark judgement in which the court held that outcomes or results of the mediation should be demonstrate to the court and reason for giving the choice of mediation shall also be recorded when the court referring the parties for mediation.

 

2. Mohd. Mushtaq Ahmad vs. State

 

The wife lodged a divorce petition and also a FIR against the husband under Section 498A of IPC as dispute has been arose between them after birth of a female baby child. The province judicature administrated the parties to go for mediation under Section 89 of CPC. The matter was settled companionably through the process of mediation when the wife determined to take back the FIR filed by her.

 

                                     Conclusion

Under ADR, Mediation is great for get justice. It is because ADR easy to settle out the problem as it is cost effective, speedy, expertise, accessibility, give maximum chances of restoring relationship between parties, simple and flexible procedure involved and less adversarial. In ADR each conflict that happens will get solved with very simple steps.