Author: Muskaan Sawhney,
Vivekananda Institute of Professional Studies, Delhi
The value system of the Indian community rests widely on the ethics of togetherness, unity and importance to familial and conjugal ties. The mindset of the community at large focuses on reunion and condonation rather than separation. If a relationship is broken, a family is considered to be a deeply unsettling failure, which the society often looks down on. Reconciliation is advised and focused on as opposed to severance and dissociation. It is this mindset that is translated in the legal framework and mediation centres are constructed and other means which help in out of court settlement and dispute resolution.
The Indian legal system has several shortcomings where one of the drawbacks is the time duration of a proceeding and how years are easily consumed before a case is completely resolved. The time paves way for an outside solution which is the preferred method by the general populace due to it being less time consuming and simpler. One such alternate method of dispute resolution is mediation. Mediation is a procedure in which the parties discuss their disputes with the assistance of a trained impartial third person(s) who assists them in reaching a settlement.[i] It is an alternative, informal method of dispute resolution under which the matter at hand is resolved outside the courtroom. Mediation was a process which used to take place in the rural areas under the Panchayat system and a legal framework surrounding it was introduced in the form of Industrial Disputes Act, 1947 which was ultimately followed by Code of Civil Procedure-The Mediation Rules, 2003. There are no legal penalties for failing to settle at mediation. In cases where mediation is ordered by court there may be penalties for failing to attend the mediation conference and making a good faith effort to settle.[ii]
The Growth of Mediation
The reformation in the legal system is owed to the then Chief Justice of India, Mr. A. H. Ahmedi who took charge in the creation of a national assessment of the civil court system about backlogs and did so by inviting the Institute for Study and Development of Legal System, USA. As per the recommendation of the reports of the Law Commission and the Malimath Commission a subsequent change was brought forward by an amendment to Section 89 of the Code of Civil Procedure as on 1st July, 2002. Mediation was accepted as one of the modes through which settlement could be attained. The consent of the parties was made mandatory and the court could refer cases for arbitration, conciliation, judicial settlement through LokAdalat or mediation.[iii]The Civil Procedure- Mediation Rules, 2003 under rule 5(f) (iii) have laid down the compulsion to go for mediation under which the court is granted the power to refer matters to mediation, provided there is an element of settlement, irrespective of the fact that the parties of the case are not in favour of the process. Hon'ble Mr. Justice R.C. Lahoti, the then Chief Justice, Supreme Court of India constituted a Mediation and Conciliation Project Committee and a Pilot Project on Mediation was initiated in Delhi in August, 2005 wherein the first batch of Senior Additional District Judges was imparted Mediation Training of 40 hours duration and started judicial mediation from their chambers in the end of August, 2005.[iv] Furthermore, on 24th October, 2005 permanent Mediation Centre equipped with modern facilities was established at Tis Hazari court complex and it was inaugurated by Hon'ble Mr. Justice Y.K. Sabharwal. The success of the mediation centre at Tis Hazari Court further led to establishment of more mediation centres across the court system in Delhi with the latest being at Patiala House Court on 22nd May, 2015.
Reasons for Emergence of Mediation
Mediation has experienced constant growth from the time it had originated in the Indian legal system. The reasons which led to the need of the introduction of an alternate system and its continued success are the failures of the judicial system which has created an even better impression and acceptance towards mediation are mentioned below-
· Speedy Trial- The Indian Judicial system is reputed to be one of the lengthiest and time consuming systems of the world. The severe lack of adequate representation compared to the number of disputes in question lead to the problem of pendency of cases and stacks of cases are left untouched. The repetitive nature of postponement of hearings along with the rigid and lengthy procedure creates the problem of a long period in which a matter is finally resolved.
· Less Time Consuming- Justice delayed is justice denied. This means that if the principle of timely justice is not adhered to, it is tantamount to a complete negation of justice. This problem is prevalent in the Indian judicial system where there is a backlog of nearly 27 million pending cases out of which, approximately 55,000 comprise of disputes relating to divorce.[v]The execution of a suit is a long and tedious process which takes years to be resolved and there are many instances when, by the time the case is decided the parties in question have passed away. Further, the provision of appeal stretches the case even longer and till a final decision is achieved a long time has passed which can measure up to decades. This long duration of a case poses a negative point of view in the mind of the citizens and often they avoid taking a matter to court. Mediation provides them with an alternate way through which they could get justice in less time.
· Economical in Nature- The party to the case has to invest a subsequent portion of money towards getting justice. The court fees, fees to the lawyer representing them and money spent to reach the court all create a financial burden which has to be undertaken for as long as the case continues. In this manner, mediation is cheaper in comparison with the money spent only in a few instances.
· Overburdened Judicial System- It is a shame that the judicial system is not well equipped to deal with the continuous supply of new cases. The judiciary is swallowed in pools of unfinished and unopened cases which it struggles to maintain. This overburdening of the judicial system paints it in a very unfavourable light with mediation proving to be a better solution. When some matters are taken up through means of alternate dispute resolution then the judiciary too has to deal with a comparatively less number of cases which reduces its burden. So the creation of mediation creates a twofold benefit for both the citizens as well as the judiciary.
· Confidentiality of the Dispute- The matter of a dispute in the court of law is not confidential rather it is a matter of public record which can be accessed by anyone. On the other hand, in the process of mediation the matter remains confidential and stays amongst the parties in question and the mediator. Whether mediation occurs before or after the filing of a lawsuit, any form of communication generated at mediation is normally inadmissible evidence.[vi]
· Less Complex Structure- The system established for a suit in the court is lengthy and rigid. Several formalities need to take place every stage. Moreover, the language of the laws is drafted in such a manner that the general public is often unable to fully comprehend it. The lack of understanding coupled with the innumerable formalities creates a system which is very complex and bewilders the citizens. Mediation, on the other hand, is a simpler process with diminished formalities.
· Well learned mediator- The role of a mediator is very important. He is a third party who is impartial and neutral. He bears no connection with the issue of the suit and thus remains unbiased. Under mediation, the appointed mediator is well learned and knowledgeable and possesses a deep understanding of the issue at the question so that the answer provided by him is a comprehensive answer which is the best possible answer for the problem and refutes the belief of the win-win, win-lose or the lose-lose situation. The mediator should be patient, persistent and equipped with common sense. She/he has an arsenal of negotiation techniques, human dynamics skills and powers of effective listening, articulation and restatement.[vii]
Mediation in property and other familial disputes
Family and marriage are perhaps society’s oldest and most resilient institutions and are found in diverse patterns, creed, sizes and colours.[viii] Familial ties strengthen an individual as they are medium of pillars of emotional, mental and physical support. The family system in India traditionally comprises of a joint family where the entire family from the ancestors to the children reside in one home with a communal kitchen and temple. Togetherness is an integral part of this aforementioned system. But it is not easy to emulate the ideals of unity under all situations in real life. There are many instances where conflicts arise amongst family members with the most common being disputes related to property. Property disputes and family conflicts clog our judicial system with around 66% of all cases being property related litigations and 10% the second largest chunk, are family matters.[ix]
The judicial system is severely overburdened by the family disputes that seek to wreak havoc in the interpersonal relationships amongst family members. Mediation plays a paramount role wherein it helps the court system by taking away some of the enumerable cases and seeks to resolve the matter by arriving at a decision that is positive for the parties at hand. Maintenance of peace and harmony is the paramount consideration in resolving family disputes.[x] The mediator seeks to create an atmosphere under which the parties have a room to be vulnerable and healthily discuss their respective grievances. The principal role of the mediator is to facilitate communication between the parties in conflict to help them reach a voluntary resolution to their dispute that is timely, fair and cost-effective.[xi] The aim of the mediator, generally, is to reunite the family and not to break them apart and works to seek a consensual decision.
Mediation in Divorce Settlements
Marital alliances are held as a sacrament in nature and are deeply revered since ancient times. The dissolution of a conjugal alliance is viewed with hostility and failure rimmed glasses. However, with the changing times, there has been a steady rise in the rate of divorce across the country. Mediation at this time plays a fundamental role which can break or make a marriage. Family Courts often try to ensure that the end to a marriage should only be if the alliance is beyond repair. Even if there is a slight hope of reconciliation and condonation then the court tries to make every effort that there should be a reunion. This viewpoint was reiterated in Gaurav Nagpal v. Sumedha Nagpal[xii]wherein the Hon’ble court held that “It is a very disturbing phenomenon that large numbers of cases are flooding the courts relating to divorce or judicial separation. The provisions relating to divorce in HMA categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Efforts should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings. People rushing to courts for breaking up of marriages should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation”
Generally, matters of divorce are referred to mediation and that an impartial party can ensure that the marriage is not salvageable and to create the separation between the spouses as easy and cordial as possible. The court aims to save the marriage and it is the job of the mediator to get across the grievances of the aggrieved spouse towards the other spouse and to attempt to clear the misunderstanding between them. The sensitivity attached to such genre of disputes requires to be treated on a personal and urgent basis, to ensure that the institution of marriage is safeguarded to maintain the essence of its sacrament.[xiii]
The decision laid down by the judiciary might not always be satisfactory and as per the wishes of the parties. It is at this point that an alternate process comes into play wherein the decision is taken in an informal setting and the best possible solution, after considering the needs and views of the parties is sought after. Mediation has now become one of the most important methods through which a dispute can be resolved. When mediation is combined with the background and ideals of India the combination turns out to be a powerful source which banks on the idea of peaceful resolution with an attempt to reconcile. Family and marital ties have been and will continue to have predominance over every relationship and when a method of dispute resolution which ensures their continuity is presented then it is bound to have a very successful relationship with the former institutions. We are now in a modern age where new and better ideas are introduced rapidly and mediation is one of them. The ideals of mediation have led to its tremendous success in a country where togetherness and reunion is preferred and separation is frowned upon.
[i] https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-how-does-it-work.html [ii] https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-how-does-it-work.html [iii] https://blog.ipleaders.in/mediation-in-india-process/#:~:text=Mediation%20is%20an%20alternative%20method,in%20fulfilling%20their%20stated%20objectives. [iv] https://delhicourts.nic.in/dmc/history.htm [v] https://www.scconline.com/blog/post/2018/05/17/mediation-of-matrimonial-disputes-in-india-domestic-violence-cases-to-mediate-or-not-to-mediate/#_ftn1 [vi] https://www.mediate.com/articles/huertaL1.cfm [vii] https://corporate.findlaw.com/litigation-disputes/what-is-mediation-and-how-does-it-work.html [viii] http://www.legalserviceindia.com/legal/article-1715-mediation-in-family-and-matrimonial-disputes.html [ix] https://timesofindia.indiatimes.com/india/Property-and-family-disputes-account-for-76-of-litigation/articleshow/51987414.cms [x] https://lawtimesjournal.in/conciliation-and-mediation-an-effective-family-dispute-resolution/ [xi] https://justice.gov.mt/en/mmc/Pages/Roles-and-Duties-of-Mediator.aspx#:~:text=The%20principal%20role%20of%20the,%2C%20fair%20and%20cost%2Deffective.&text=A%20solution%20should%20only%20be%20reached%20by%20agreement%20between%20the%20parties. [xii] AIR 2009 SC 557 [xiii]https://www.mediate.com/articles/NeedoftheHour.cfm#:~:text=Mediation%20as%20a%20form%20of,the%20nature%20of%20their%20dispute.