FAMILY LAW
“……….The Rule of Law, which is so important, must run closely to the Rule of Life. It cannot go off at a tangent from life’s problems and be an answer to problems which existed yesterday and are not so important today. It has no deal with today’s problems. And yet law, by the very fact that it represents something basic and fundamental, has a tendency to be static. That is the difficulty, that it must not be static, as nothing can be static in the changing world”
The words quoted above of late Pt. Jawaharlal Lal Nehru, if applied to the present justice delivery system, we would find that our system is fundamental but at same time it is also static, which would negate the basic object of law i.e. to give justice.
The traditional system of dispute resolution in India is based on the same old laws (with some changes) laid down by the British. The system which was justifiable at that period of time, but what the present social conditions claim is a change for the betterment.
Following are various drawbacks of the traditional system of dispute resolution mechanism.
Procedural Delays: The procedural mechanism of the legislation such as provided in
The Indian Evidence Act, Indian Penal Code & Civil Procedure Code is very lengthy causing inordinate delay in the dispute resolution.
Increasing Workload on Judiciary: Due to the procedural delays number of
litigations keeps on pending ultimately resulting in the increase of burden on the Judiciary added by the new disputes.
Lack of control over proceedings: The traditional dispute resolution system lacks
the control which results in the stretching of the litigation at the whims & fancies of the advocates and the reluctant party, which finally delays the justice.
Not easily accessible: Due to the fix Venue i.e. the courts which situated permanently
in a particular place, makes it difficult for a common man to have easy access acce ss to it.
1|THIRD
SE ME S TE R
FAMILY LAW
Cost: The cost which an ordinary litigant has to pay for the proceedings, including the
Advocate’s fees is indeterminate which fr ustrates the litigant after some time.
Thus, ultimately this all leads to delay in justice and as all of us know “Justice delayed is Justice denied”. This poses a big dilemma before a lay litigant, that on one hand he wants justice and on the other hand he may or may not get it at the cost of inordinate delay.
The solution to the above dilemma can be answered by the observation of Fredric, “Justice is never given, it is a task to be achieved”.
Thus, an individual can get justice provided he takes efforts to achieve it. The present paper has tried to put forth how justice can be achieved through the various “A.D.R.” instead of the various traditional litigating procedures. The term “A.D.R” implies a mechanism of resolving dispute by the means other than the regular court proceedings. While saying that it is important to note that ADR is not a substitute to the regular courts, in other words ADR is not to supplant the courts but to supplement it. The upcoming challenges before the law due to globalization and, increase in the number of litigations in ordinary court of law have led to the emergence of the Alternative Dispute Resolution.
There are basically three types of Alternative Dispute Resolution namely:
ARBITRATION
CONCILIATION
MEDIATION
Now, I will be shifting my attention and focussing on
M E D I A T I O N as
one of the process of
Alternative Dispute Resolution and explain the various aspects attached with the same.
WHAT IS MEDIATION
Mediation, by comprehension of a layman it is to ‘sort out through someone’.
2|THIRD
SE ME S TE R
FAMILY LAW
Mediation is the disputes resolving mechanism where, a third party i.e. mediator attempts to settle the disputes, who examines the claims of the parties and assists the parties in their negotiations to settle their disputes. Thus in conciliat ion the duty of the conciliator is to give advice either orally or in writing, where as the role of mediator is more to persuade the parties in order that they find amicable solution to their dispute. Like conciliation mediation may be ad hoc or institutional.
Mediation is an informal process during which an impartial third party, the mediator, assists disputing parties in reaching a mutually acceptable agreement regarding their dispute. The mediation session is intended to identify pertinent issues, clarify any misunderstandings, explore solutions, and negotiate an agreement.
CHARACTERISTICS OF MEDIATION
a) It is voluntary process. b) The parties are free to withdraw from the mediation at any time without either for penalty or adverse effect. c) No agreement is required. d) It is not binding but once there is an agreement and settlement term then it becomes binding.
HOW DOES MEDIATION WORK
At the mediation session all parties present a summary of their points of view. Attorneys for the parties may be present. Typically, the mediator will then meet privately (caucus) with each party to explore more fully the facts and issues of each side. The caucus offers partici pants the opportunity to vent anger or frustrations outside the presence of the opposing side. The mediator usually will continue to caucus alter natively with each party, carrying settlement proposals back and forth until an agreement is reached. The agreement is then reduced to writing, and signed by the parties.
ROLE OF THE MEDIATOR
3|THIRD
SE ME S TE R
FAMILY LAW
The mediator is not a judge and does not render a decis ion or impose a solution on any party. Rather, the mediator helps those involved in the dispute talk to each other, thereby allowing them to resolve the dispute themselves. The mediator manages the mediation session and remains impartial.
TYPES OF DISPUTES WHICH CAN BE MEDIATED
1) Landlord and Tenant 2) Neighbor and Community 3) Business and Customer 4) Employer and Employee 5) Divorce and Family
6) Juvenile 7) Negligence 8) Products Liability 9) Construction 10) Contracts 11) Personal and Real Property 12) Small Claims 13) Other Civil Matters
WHO CAN ACT AS A MEDIATOR
Mediators are usually lawyers, social workers, psychologists or other professionals who have formal training in mediation.
BENEFITS OF MEDIATION
a) Parties keep control over the outcome of their own problem. b) Disputes can be settled promptly. A mediation session can be scheduled as soon as both parties agree to use mediation to resolve the dispute. c) Mediation promotes better relationships through cooperative problem-solving and improved communication. d) Both facts and feelings are considered with the hel p of an impartial mediator. 4|THIRD
SE ME S TE R
FAMILY LAW
e) Mediation is private and confidential. The mediator and parties must maintain,
5|THIRD
SE ME S TE R
FAMILY LAW
to the full extent required by law, the confidentiality of the information disclosed during mediation. f) Mediation is voluntary, and may be terminated at any time by a party or the mediator. Although in court-referred mediation the parties may be ordered to attend a mediation session, any agreement is entirely voluntary. In the absence of a greement, the parties retain their right to take the dispute before a judge or jury. g) Mediation costs may be significantly less than taki ng a case to court, especially if mediation is chosen prior to filing a lawsuit. Thus, mediation will be successful only in the cases:
If the parties are committed to the process.
If all the parties have authority to act.
If thorough knowledge of the facts of the disputes is available.
If the mediator is an expert.
HOW IS MEDIATION AN EFFECTIVE TOOL OF ALTERNATIVE DISPUTE RESOLUTION SYSTEM IN MATRIMONIAL DISPUTES
Conflicts arise in all aspects of our lives and can be resolved in a variety of different ways, both formal and informal. We are all familiar with formal methods of conflict resolution such as those provided by civil and criminal law and we are all practiced in the use of informal techniques such as negotiation and bargaining. Some types of dispute, however, are not easy to resolve satisfactorily through the courts but at the same time seem difficult for people to be able to deal with themselves. The primary aim of mediation is not to reduce congestion of the courts but to repair, with the help of a professi onal trained in mediation, a breakdown in communication between the parties. Mediation is also ai med at assisting in the resolution of such disputes through a process of skilled and principled intervention. This method is extremely effective in family disputes, especially with children involved and reference to the court is often unnecessary.In many break-ups time needs to elapse before both parties are emotionally ready to put the past behind them. Mediation is a confidential wa y for you to arrive at fair, long lasting arrangements, thus reducing the pain and trauma associated with separation or divorce.
With the help of an impartial mediator, or pair of mediators, you can safely air your
6|THIRD
SE ME S TE R
FAMILY LAW
differences and constructively arrive at financial settlements and arrangements for children that you as a couple choose and work out, rather than having judges or lawyers making decisions for you. Mediators do not give legal advice and do not represent individuals, although mediators can be solicitors or other professionals who deal with families. When proposals are reached, a summary is drawn up by the mediator(s) which each of you will take to your own solicitor who will consider whether to turn it into a legall y binding agreement, and also take care of any other legal formalities such as the divorce itself.
There is no hard and fast rule as to when be the case suitable for mediation. At an early stage, parties may be ready for a settlement process because they may not be too wedded to their positions and their relationship may not be too fractured by the litigation process. At a later stage, parties also may be ready to participate in a settlement process because discovery is mostly done, issues have been narrowed through motions to dismiss or summary judgement motions, and parties feel more knowledgeable about the likely court outcome and litigation courts. Mediation can reduce misunderstanding and bitterness and save unnecessar y legal costs. It is not a substitute for legal advice and clients are encouraged to consult solicitors when necessary.
Mediation for matrimonial disputes includes divorce, separation, annulment, establishment of paternity, probate and estate disputes, child custody or visitation, or child or spousal support. It may help the parties reach an agreement and resolve all types of family related issues. Family mediation is not, however, a therapy. It is intended for and may be of help to, any person having a conflict with a spouse, a companion, a child, a parent, or with any other family member. Family mediation helps the parties resolve their own differences on their own terms allowing them to strengthen their ability to communicate, reach s olutions adapted to their unique personal circumstances, understand and appreciate the needs of other members of their family, and reach lasting agreements.
A matrimonial mediator assists couples to make joint decisions about their separate futures, the children, finance, property and other important matters. Mediation is prevalent today in the United States and in foreign countries, including Canada and England. In some states, only two percent of filed cases are resolved by adjudication. Many cases are sent to mediation, and approximately seventy percent settle at 7|THIRD
SE ME S TE R
FAMILY LAW
the mediation conference. Most of the remaining thirty percent settle before trial, often as the result of the process begun in mediation. For example, the number of reported mediated cases in Florida increased from 34,000 in 1989 to almost 50,000 in 1991. This movement toward mediation reflects a relatively long-term trend in Florida's judicial system.
Mediation is especially helpful in family disputes because of the unique nature of family law. Family matters involve not only the law and facts, but also feelings. An increase in the number of divorces and of children born outside marriage has caused states to seek methods other than litigation to solve family disputes involving child visitation, as well as financial matters. Mediation is one such method.
Mediation is an attractive alternative in family disputes, because it empowers the parties to devise agreements that meet their specific needs. Unlike the adjudicatory process, the emphasis in mediation is placed on establishing a workable solution, rather than on determining who is right or wrong. Decisions are made by the parties, not dele gated to a judge. Mediation of divorce disputes began because of increasing court costs, delay, and escalation of conflictcaused by dissatisfaction with the traditional method of solving family matters through litigation. To address this dissatisfaction, lawyers and therapists offered to help their clients settle cases in a non-adversarial manner.
The mediation process helps reduce parties' hostility and children's trauma from the divorce process. This is particularly significant when the parties are parents and will remain in contact after the marital relationship ends. The process encourages the parties to work together, isolate the issues, and learn through cooperation. Mediation produces stable agreements that are more likely to inspire long-term compliance by the parties. In addition, even when the parties do not reach agreement during the mediation process, res earch indicates that family cases often settle prior to trial as a result of issues discussed in mediation.
Many feel that mediation is a particularly appropriate tool in the midst of interfamilial disputes. However, the appropriateness of family mediation in the context of i ncreasing awareness of the prevalence of domestic violence has been a point of contention between those who favour the use of mediation in the family arena and those who contend that
8|THIRD
SE ME S TE R
FAMILY LAW
mediation can be both unfair and potentially dangerous.
Firstly, many argue that women’s lack of power relative to men in our society makes it a weak option. It is argued that due to the presence of domestic violence even the most skilled mediator will likely be not able to compensate for the disparity of power. Some argue that, in the presence of domestic violence, it is difficult to imagine a batterer coming to a mutually agreeable settlement with his partner and also that he would comply with something which he believes is unfair to him. The reality is that apparently her consent will be under duress. Since mediation is an effort for mutual decision making, presence of domestic violence makes it illequipped. Secondly, using mediation where there has been violence is the belief that it places the sufferers at a position where there is a high chance of future violence. T he batterer gets the access to a spouse who has been avoiding contact since the separation, leading to harassing her at the mediation. Thirdly, another criticism against mediation in this context is that the mediators will not know be aware of violence and since the agreements not being enforceable and complying, there might not be a total discl osure of facts. Also, at times when the mediators uses forceful agreement tactics, he forgets the past abuse while the processing the future. A thought arises in such a situation that these mediating cases regarding domestic violence will take away violence out of the public eye. When such case s of abuse are sent to mediation, it provides an idea that violence is not a serious issue, it can be negotiated and this in turn reduces the criminal’s answerability and the seriousness of their act.
Analysing the arguments supporting mediation in spite of the presence of domestic violence include an analysis of the weigh of the benefits and harms.
First argument here being the power balance between the parties to mediation. In case of presence of domestic violence, balance of power between the parties is never possible. However, the mediators are trained to balance the power between the parties. In the field of International mediation, mediation is the preferred method for disputes where there are large differences of power. There is also a problem of detection of such cases unsuitable for mediation. Another problem would include the absence of review and complaint mechanisms. Finally, and perhaps most importantly, there is evidence to support the argument that mediation in cases of domestic violence can actually have an impact on lessening the incidents of abuse because the mediation process promotes cooperation, it can
9|THIRD
SE ME S TE R
FAMILY LAW
be utilized as a tool to help break the cycle of violence.
Other arguments include the fact that mediators, unli ke judges, can customize the process; that mediation, unlike the adversarial system, provides a model of future interaction; that mediation can address issues the court typically would not include; and the general advantages of mediation, such as it being more efficient and less expensive than the adversarial process. All of the problems highlighted above are magnified when mediation is mandatory (for example, court-ordered) instead of voluntary. Coercion and compulsion seriously weaken the integrity of the mediation process.
In general, family mediation is valued as an alternative method of resolving family disputes as it has the advantage of promoting methods of friendly settlement and reducing the economic and social costs of separation and divorce for families, the state and for society. For family mediation to be successful, however, the main principles of mediati on must be respected, in particular the independence and impartiality of the mediator and the confidentiality of the process, for the conduct of which training is required.
Equality of the sexes must be guaranteed in family mediation as i n family justice systems in general. Individual rights must not be sacrificed to cost -effectiveness or the trend towards alternative conflict resolution methods. Neither sex should be disadvantaged in family mediation because of power imbalances: be it because one party has suffered abuse, is unable to fully present its points of view (e.g. because of drug/alcohol dependency or mental health issues), or is emotionally or financially at a disadvantage (e.g. because one party has looked after the children and not worked outside the home). When patently unfair agreements are reached during family mediation resulting from these power imbalances, they must not be endorsed by the mediator or approved by a judge.
It is essential to ensure that mediation does not lead to an agreement satisfying the wishes of one party where that party dominates the other in any wa y whatsoever.
CONCLUSION
10 | T H I R D
SE ME S TE R
FAMILY LAW
Viewing the number of benefits mediation provides over the adversary system, it would be rational to use mediation as a compulsory method of dispute resolution. Hence with a proper planning and training, mediation is to be made compulsory in matrimonial disputes.
11 | T H I R D
SE ME S TE R
