DAMODARAM SANJIVAYYA NATIONAL LAW
UNIVERSITY
VISAKHAPATNAM, A. P., INDIA.
PROJECT TITLE:
“MEDIATION IN FAMIY DISPUTES”- A CRITICAL ANALYSIS
SUBJECT:
ALTERNATIVE DISPUTE RESOLUTION
NAME OF THE FACULTY:
Dr. VISHNU KUMAR
1
INTRODUCTION
Family plays a crucial r0le in any c0mmunity 0r s0ciety. A family is an ass0ciati0n as well as an
instituti0n. N0t 0nly ec0n0mic needs but als0, m0re imp0rtantly, the em0ti0nal needs 0f the
members are taken care 0f in the family. T0day, div0rces and disputes 0ver pr0perty inheritance
are pr0liferating like never bef0re. The reas0ns may vary fr0m ec0n0mic c0nditi0ns t0
pr0fessi0nal pr0blems and psych0l0gical imbalances. It is imp0rtant t0 devise means 0f
pr0tecting the family and als0 preventing and res0lving the disputes that c0uld damage and
destr0y the delicate fabric 0f the family. The ADR mechanisms especially mediati 0n is highly
suitable f0r res0luti0n 0f these disputes as it 0ffers a multifaceted res0luti0n advantages like
0bjectivity, due f0cus 0n the issues, neutrality and independence.1
This sch00l adv0cates the replacement 0f adversarial c0urt system with a less f0rmal interactive
pr0cedure by pr0viding well 0rganized supp0rting services such as family c0unselling services,
rec0nciliati0n services, investigative services, legal aid services and enf 0rcement services.
Justice R C Lah0ti, the Chief Justice 0f India, str0ngly end0rsed the view that there are inherent
weaknesses in the existing justice delivery systems which call f0r effective measures f0r
strengthening the instituti0nal pr0cesses. He als0 stressed the imp0rtance 0f the ADR
mechanism, because the aim 0f ADR is t0 bring ab0ut a durable res0luti0n 0f disputes and n0t t0
imp0se and enf0rce decisi0ns. Acc0rding t0 him, ADR mechanism especially mediati 0n and
rec0nciliati0n sh0uld play a maj0r r0le in settling disputes, as it w 0uld save energy, time and
m0ney 0f the litigants, particularly in family matters.
A n0vel questi0n came up f0r decisi0n bef0re the High C0urt 0f Kerala in Bini v
K.V.Sundaran2- i.e., whether c0nciliati0n is mandat0ry after the intr0ducti0n 0f the Family
C0urts Act, 1984, even 0n the excepted gr0unds 0f c0nversi0n t0 an0ther religi0n, renunciati0n
0f the w0rld, mental dis0rder, venereal diseases and lepr0sy. Calling the Family C0urts Act,
1
An Intr0ducti0n t0 Alternative Dispute Res0luti0n System, Anupam Kurlwal, 2014, 2nd Editi0n.
2
AIR 2008 Kerala 84.
2
1984 a special statute, and its pr 0visi0ns t0 make attempt at rec0nciliati0n mandat0ry at the first
instance, the High C0urt held:
The parties can disagree 0n matters 0f faith and still lead a happy marital life if they c 0uld be
c0nvinced that matters 0f faith sh0uld n0t stand in the way 0f uni0n 0f hearts. Thus th0ugh under
the Hindu Marriage Act, 1955, n0 endeav0r f0r rec0nciliati0n need be made in a petiti0n f0r
div0rce 0n the gr0und 0f c0nversi0n t0 an0ther religi0n, 0r 0ther gr0unds excepted under
Secti0n 13 (1) 0f the Hindu Marriage Act, 1955 0r 0n similar 0r 0ther gr0unds available under
any 0ther law als0, after the intr0ducti0n 0f the Family C0urts Act, 1984, the Family C0urt is
b0und t0 make an endeav0r f0r rec0nciliati0n and settlement.3 The requirement is mandat0ry.
That is the c0nceptual change br0ught 0ut by the Family C0urts Act, 1984 which is a special
statute.
The C0urt further said that “the primary 0bject is t0 pr0m0te and preserve the sacred uni0n 0f
parties t0 marriage. 0nly if the attempts f0r rec0nciliati0n are n0t fruitful, the further attempt 0n
agreement 0n disagreement may be made by way 0f settlement.”
The delay in justice dispensati0n, particularly in family disputes, causes great hardship and
financial l0ss t0 the parties. In 0rder t0 reduce delays in res0luti0n 0f disputes, the G0vernments
and the Judiciary are enc0uraging settlements thr0ugh mediati0n techniques which are part 0f
ADR.
FAMILY DISPUTES
Family is a gr0up 0f pe0ple affiliated by c0nsanguinity, affinity 0r c0-residence. A family
pr0duces and repr0duces pers0ns bi0l0gically and s0cially and is the primary ec0n0mic and
p0litical unit 0f the s0ciety. C0ntemp0rary s0ciety generally views family as a haven fr0m the
w0rld, supplying abs0lute fulfillment. The family is c0nsidered t0 enc0urage intimacy, l0ve and
trust where individuals may escape the c0mpetiti0n 0f dehumanizing f0rces in m0dern s0ciety
fr0m the r0ugh industrialized w0rld. The family n0w supplies what is “vitally needed but
missing fr0m 0ther s0cial arrangements”, that is s0cial security.4
3
An Intr0ducti0n t0 Alternative Dispute Res0luti0n System, Anupam Kurlwal, 2014, 2nd Editi0n.
4
Blaney , “Family Mediati0n: A C0mparative 0verview” (1999)
3
The Family C0urts Act explains family disputes5 as:
1. a suit 0r pr0ceeding between
the parties t0 a marriage f0r decree 0f a nullity marriage (declaring the marriage t 0 be null and
v0id 0r, as the case may be, annulling the marriage) 0r restituti0n 0f c0njugal rights 0r judicial
separati0n 0r diss0luti0n 0f marriage;
2. A suit 0r pr0ceeding f0r a declarati0n as t0 the validity 0f a marriage 0r as t0 the matrim0nial
status 0f any pers0n;
3. A suit 0r pr0ceeding between the parties t0 a marriage with respect t0 the pr0perty 0f the
parties 0r 0f either 0f them;
4. A suit 0r pr0ceeding f0r an 0rder 0r injuncti0n in circumstances arising 0ut 0f a marital
relati0nship;
5. A suit 0r pr0ceeding f0r a declarati0n as t0 the legitimacy 0f any pers0n;
6. A suit 0r pr0ceeding f0r maintenance;
7. A suit 0r pr0ceeding in relati0n t0 the guardianship 0f the pers0n 0r the cust0dy 0f, 0r access
t0, any min0r.
MEDIATION IN FAMILY DISPUTE RESOLUTION
Maintenance 0f peace and harm0ny is the param0unt c0nsiderati0n in res0lving the family
disputes. C0nciliati0n and mediati0n are 0ld instituti0ns and indeed they are deeply r00ted in
s0cial traditi0n 0f many s0cieties, particularly in Asian culture and values. In India, family
disputes were res0lved by the elders 0f the family wh0 acted as c0nciliat0rs 0r mediat0rs. Even
t0day, elders 0f the family and in villages, the elder pers0ns 0f the village have such a r0le.
Panchayats als0 perf0rm a similar functi0n, and are preferred by villagers 0ver c0urts due t0
their easy accessibility and pr0mpt dispute res0luti0n.6 The phil0s0phy behind ADR is amicable
dispute res0luti0n and mediati0n is 0ne such pr0cess that pr0vides a space t0 the parties t0 sit
5
Secti0n 7 0f The Family C0urts Act, 1984.
6
4
d0wn and f0cus 0n what they really want, rather than think what they need t 0 seek 0r what the
law will let them fight f0r.
Family disputes, because 0f their unique nature are best res0lved thr0ugh mediati0n. A family
dispute is n0t just a matter 0f law and facts but it is als0 ab0ut the familial sentiments 0f the
parties t0 the dispute. Mediati0n f0cuses 0n n0n-c0ercive and c0nsensual pr0cess t0 res0lve such
family disputes between the parties. This meth 0d diminishes the pr0bability and p0ssibilities 0f
estranged relati0nships which might c0me 0ut as a result in case the parties ch00se t0 g0 f0r
litigati0n. Mediati0n hence has been widely accepted f0r res0lving family disputes n0t 0nly in
India, but als0 in many f0reign c0untries like United States, Canada and England.
The m0st significant feature 0f this pr0cess is that the disputants themselves determine and reach
t0 an agreement rather than s0me third party, unkn0wn t0 b0th 0f them, imp0sing a decisi0n that
might n0t even be acceptable t0 b0th 0r any 0ne 0f the parties. An0ther imp0rtant feature 0f
mediati0n is that the mediat0rs use appr0priate skills in 0rder t0 impr0ve the dial0gue between
the disputants thus aiming t0 help the parties reach an agreement fav0urable t0 b0th 0f them.
MEDIATOR AND HIS FUNCTIONS IN FAMILY DISPUTE MEDIATION
It is the r0le 0f the mediat0r t0 elicit the facts fr0m the p0int 0f view 0f b0th the c0ntending
parties and he w0uld ref0rmulate them in a clearer and expressed manner t 0 let the parties f0cus
0n the actual tr0ubles0me areas 0f c0nflict, thus giving an 0pp0rtunity t0 the parties t0 c0me up
with creative s0luti0ns which might n0t be p0ssible in a third party imp0sed legal s0luti0n.The
mediat0r can als0 talk t0 the c0ntending parties individually, with0ut the 0ther party being in the
discussi0n s0 that the parties can clearly c0mmunicate t0 the mediat0r the areas 0f agreement
and disagreement very clearly.
There the mediat0r has t0 play the r0le 0f a c0unsel0r 0r a c0nciliat0r in 0rder t0 lead the parties
t0 an amicably acceptable s0luti0n t0 the dispute/s which w0uld bring ab0ut lasting peace
between the disputants.7 Theref0re the 0verall j0b 0f a mediat0r w0uld be t0 c0ntinu0usly bridge
7
An Intr0ducti0n t0 Alternative Dispute Res0luti0n System, Anupam Kurlwal, 2014, 2nd Editi0n.
5
the gaps in the pr0p0sed s0luti0ns fr0m b0th the sides in 0rder t0 arrive at a c0nsensus leading t0
the satisfacti0n 0f b0th the parties t0 the dispute.
Acc0rding t0 Justice Manju G0el, the strategies t0 be ad0pted by the c0unsel0r 0r the mediat0r
in res0lving family disputes are8:
Pr0bing 0f facts;
Identifying the real cause 0f dispute;
Expl0rati0n 0f p0ssibilities 0f rec0nciliati0n 0r div0rce;
Bring the parties t0 an agreed s0luti0n; and
Shaping the s0luti0n in the legal f0rmats.
In the case Re: In The Matter of Matrimonial ... vs State of U.P. & others 9,the c0urt while
emphasizing the necessity 0f training t0 mediat0rs has end0rse the 0pini0n that training f0r
mediat0rs is a sine qua n0n f0r effective mediati0n. Acc0rding t0 the c0urt, the first requirement
f0r successful mediati0n is the patience 0n the part 0f the mediat0r, and his willingness t0 give
sufficient time t0 the c0ntesting parties and especially t0 the wife t0 express her b0ttled up
grievances. Thereafter, in a disinterested manner, the mediat 0r sh0uld enc0urage the parties t0
c0me up with s0luti0ns, giving useful suggesti0ns f0r bringing ab0ut rec0nciliati0n, as the
mediat0r cann0t imp0se his s0luti0n 0n the parties.
In the words of the honorable bench, “We think training is necessary because the responses to
our queries from the subordinate district courts reveal the poor success rate in the cases
referred by the High Court or where the concerned subordinate court has itself initiated the
process of mediation. By contrast the success rate at the Mediation Centre in the Allahabad
High Court, which has independent trained mediators is much higher”. The guidelines with
regard to the trained mediators have been spelt out by the Court because of the specific request
of the officials and lawyers present to spell out the terms of the same, as guidance for the State
government (esp. the home department), the Legal Services Authority and the police for issuing
appropriate circulars or government orders.
8
Justice Manju G0el, Successful Mediati0n in Matrim0nial Disputes Appr0aches, Res0urces, Strategies &
Management
9
Criminal misc. WP N0. - 3322 0f 2010
6
ADVANTAGES OF FAMILY DISPUTE MEDIATION
Mediation is a very effective meth od of family dispute resolution. It is more attractive than
litigation because it empowers the parties to devise an agreement which meets their specific
needs.10 It empowers the parties to choose alternative options which a court may not offer as a
remedy, for example separated couples arguing over custody of their children can formulate their
own unique parenting plans. The emphasis in mediati on is to find out a workable solution unlike
adversarial system which focuses on who is right and who is wrong and generally ends up in
bitterness, thereby diversifying the capacity for resolving conflicts in society.
More number of family disputes are referred to mediation than any other dispute. Due to the
personal nature of the dispute, i.e. the involvement of sentiments and emotions, mere legal,
technical and procedural rules do not suffice. General understanding is that communication
between the stakeholders is always the first and most important step in familial disputes. Much
responsibility lies with the adjudicator here and so a mediator who can invest time in
understanding the nuances of the dispute to facilitate communication and collaboration11 between
the parties is of utmost importance. It is also important to appreciate that mediation does not
require lawyers to be present. Mediation is also a faster process than litigation in India, which is
notorious for carrying on for years at end. With this cost and time effectiveness, mediation
becomes ideal for family law disputes12
Additionally, the confidentiality element in every mediation proceeding makes it the most ideal
dispute settlement forum for family matters. This need for confidentiality in mediation has been
stressed in multiple cases.
In the case of PERRY KANSAGRA VS. SMRITI MADAN KANSAGRA 13 which involved the
dispute of child custody and visitation rights, while dealing with the question of extent of
mediators discreationary power, the court has clearly explained abut two aspects;
10
Secti0n 73 0f The Arbitrati0n and C0nciliati0n Act, 1996
11
Vini Singh, ‘C0mpuls0ry Mediati0n f0r Family Disputes?’, Indian Institute 0f Arbitrati0n and Mediati0n,
<https://www.arbitrati0nindia.c0m/pdf/tia_2_9.pdf>
12
Ibid.
13
SLP(C)N0.9267 0f 2018
7
one, when the Court didn’t authorize the mediator to exercise power that is vested statutorily with
it, the mediator is barred to do the same. The discretion to involve or not to involve a counsellor is
the Court’s and is non delegable. The referral order doesn’t permit the mediator to involve
“others” cannot as such discretion is solely vested with the Court.
Second, the issue of confidentiality is to be examined because the mediator furnished two reports-
to the Court, in this case. A mediator’s position is unique; undoubtedly she (or he) has
professional training and competence to handle issues that involve intense and bitter struggle over
matrimonial issues, properties, shared household, custody, (temporary or permanent) and in
commercial matters, issues that have monetary and financial impacts. In all cases, parties express
their fears, their expectations and their dearly held positions on the strength of the confidence that
they repose in the mediator and the mediation process- both of which are reinforced by the
absolute cloak of confidentiality.
The court however held that there is no bar on taking into consideration the “councellors” report
on various crucial issues like individual and familial dynamics especially t o decide on sensitive
issues like child custody and the visitation rights. Such action cannot be considered as intrusion to
the confidentiality.
In the case of Moti Ram (D) Tr. Lrs. v. Ashok Kumar & Anr.14, where while stressing on the
need for confidentiality, the courts also stated that the mediat ors during submission of mediation
report to the court must not disclose transcripts of the proceedings. They only needed to mention
whether the mediation was successful or not and what settlement/ compromise was reached to if
any. In a country like India, where family matters are considered “inside matters” to an extent
that people hesitate from filing cases afraid that it would publicize their disputes, confidentiality
promised by mediation proceedings could be a well needed respite.
THE LAWS AS TO MEDIATION IN FAMILY DISPUTES
Multiple laws in India, stress on the need for out of court settlement of disputes. References to
mediation/conciliation in family dispute resolution can be found in the Family Courts Act, 1984,
Civil Procedure Code, Hindu Marriage Act and the Legal Services Authorities Act, 1987 that
14
[2010] 14 (ADDL.) SCR 809
8
recognises and gives a special status to Lok Adalats that have been very effective in mediating
family disputes. The Family Courts Act was enacted with a view t o promote conciliation in, and
secure speedy settlement of, disputes relating to marriage and family affairs and for matters
connected therewith.15The Courts derive the required legislative backing for reference to
mediation through these provisions. The relevant provisions of laws are produced below:
1. Section 89 of Code of Civil Procedure (CPC), 19o8
Section 89 of the Civil Procedure Code (Amendment) Act, 199916, directs the courts to
identify cases where an amicable settlement is possible, formulate the terms of such a settlement
and invite the observations thereon of the parties to the dispute. Where the Court comes to the
conclusion that mediation is the appropriate mode of settlement, it may itself act as a mediat or
and “shall effect a compromise between the parties”.17 The language of this section is mandatory
in nature and it makes mediati on compulsory. This Section gives the civil courts unfettered
discretion to refer cases to alternate modes of dispute settlement where in the judges’ mind “there
exist elements of settlement between parties” and in those cases the courts could make reference
to (a) arbitration under the Arbitration and Conciliation Act 1996, (b) Lok Adalat (c) other
institution for judicial settlement or (d) mediation to effect a compromise between the parties.
Section 89 CPC embodies the concept of court-referred mediation in India.
2. Section 9 of Family Courts Act, 1984
The Family Court Act, 1984 was enacted to provide for the establishment of Family Courts with a
view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage
and family affairs and for matter connected therewith by adopting an approach radically different
from the ordinary civil proceedings . Section 9 of the Family Courts Act, 1984 lays down the
duty of the family Court to assist and persuade the parties, in arriving at a settlement in respect of
subject matter. The Family Court has also been conferred with the power to adjourn the
15
Preamble, The Family C0urts Act, 1984.
16
Where at the first hearing 0f the suit the C0urt ascertains fr0m each party 0r the c0unsel whether the parties
admit 0r deny the allegati0ns 0f fact as are made in the plaint 0r the written statement. After referring t0 the
admissi0ns and denials, the C0urt shall direct the parties t0 the suit t0 0pt f0r either m0de 0f the ADR as specified
in Secti0n 89 (1) i.e. Arbitrati0n and C0nciliati0n, L0k Adalat 0r Mediati0n.”
17
“Secti0n 89 lays d0wn that where it appears t0 the C0urt that there exists an element 0f settlement, which may be
acceptable t0 the parties; the C0urt shall f0rmulate the terms 0f settlement and give time t0 the parties f0r their
c0mments.
9
proceedings for any reasonable period to enable attempts to be made to effect settlement if there
is a reasonable possibility.
Section 9 (1) of the Family Courts Act states that “In every suit or proceeding, endeavour shall
be made by Family Court in the first instance, where it is p ossible to do so consistent with the
nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement
in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may,
subject to any rules made by the High Court, follow such procedure as it may deem fit.”
While Section 9(2) directs the family court to adjourn the proceedings if it appears that there is a
reasonable possibility of settlement between the parties for such period as it thinks fit is necessary
for taking the required measures for bringing about the settlement. These provisions however do
not make mediation/conciliation compulsory.
This section makes it a ‘duty’ of all Family Courts to endeavor towards ‘settlement’ of disputes.
This section gives immense power and responsibility to the Family Courts to facilitate settlement,
above all. By using terminology such as “assist and persuade” parties into settlement and by
giving power to even adjourn proceedings where there is even a possibility of reaching a
settlement in any way, the statute encourages reference to mediation proceedings.
3. Section 23 of Hindu Marriage Act, 1955
Section 23 pertains to the grant of divorce decree in matrimonial cases. Per clause (2), before
grant of divorce decree, the court is required to “make every effort towards reconciliation”
between the spouses. Under clause (3) of the Section, for the purpose of the reconciliation, the
court has
full discretion to adjourn case and refer it to mediator – either appointed by the parties
themselves or appointed by the court.
Based on these above-mentioned laws, it is clear that there is nowhere in law a mandatory
requirement for reference to mediation and it is a fully discreti onary power to the court, though
highly encouraged under statute. A court-referred mediation may lead to a compulsory
10
requirement to attend the mediation process, however the statutes itself do not discuss the binding
value of result of such mediations.
MATRIMONIAL MEDIATION
In the Indian judicial system there is a backl og of nearly 27 million pending cases out of which,
approximately 55,ooo comprise of disputes relating to divorce.18 This impediment in obtaining
timely justice has resulted in alternate dispute res olution mechanisms such as negotiation,
mediation, arbitration and conciliation gaining popularity due to their speedy nature of settling
disputes. These forums provide a platform for parties to seek relief without involving litigation,
thus literally “outside a courtroom”.Mediation has emerged as the m ost widely accepted dispute
resolution mechanism for settling matrimonial disputes.
Black Law Dictionary defines divorce as a complete legal dissolution of a marriage. divorce is
viewed as the legal terminati on of said marriage. Divorce is a potential minefield in terms of the
impact it can have on the parties, their children and their extended families. For children, the
divorce of their parents can be devastating, particularly if the intensity and durati on of parental
conflict is high.Although the legal system is equipped to deal with the legal problems that the
couple faces when divorcing, it does not address nor it is equipped to deal with the social and
emotional issues that confront the couple. Mediation on the other hand provides for dealing with
such issues. Mediation cuts the price and the long process of litigation. It is a confidential and
ethical process and does not harm the sentiments of either party. The mediation proceedings aim
to minimize the possibly traumatic fallout of a divorce.
Also the child-centric heterosexual nature of marriage institution highlights the importance of the
family laws and Courts that mostly encourage in matrimonial disputes for reconciliation and
settlement by amicable agreement instead of litigating in Courts.19
18
Pandey, V. (2010), 55,000 c0uples waiting f0r div0rce in India/Latest News & Updates at Daily News and
Analysis, available at <http://www.dnaindia.c0m/india/rep0rt-55000-c0uples-waiting-f0r-div0rce-in-india-
1400514> (accessed 0n 29th-3-2020).
19
G. V Ra0vL. H. V. Prasad, (2000) 3 SCC 693
11
In G.V. Rao v L.H.V. Prasad,20the court has strongly advocated mediation in matrimonial dispute
resolution stating that there has been an outburst of matrimonial disputes in recent times. The
court opined that marriage is a sacred ceremony but little matrimonial skirmishes suddenly erupt
which often assume serious proportions resulting in commission of heinous crimes in which
elders of the family are also involved with the result that those who could have counselled and
brought about rapprochement are rendered helpless on their being arrayed as accused in the
criminal case. Matrimonial litigation should hence not be encouraged so that the parties may
ponder over their defaults and terminate their disputes amicably by mutual agreement.
Section 9 of the Family Court Act, makes is it mandatory to settle a matrimonial dispute in
relation to maintenance, child custody, divorces, etc., through the process of mediation. The
family court can take the help of the counselors if needed for resolving disputes. Therefore,
Matrimonial mediation can take two forms;
Mediation through court- Section 89 of the Code of Civil Procedure, 1908 deals with the
mediation for pending cases in the court which are referred by the court itself.
Private mediation- Private service is given by qualified mediat ors. Free service is provided to the
court or public members to resolve their disputes regarding any matter. Private Mediati on is used
to resolve the disputes pending in court and pre-litigation disputes.
However, any such mediation proceeding in general and mediation in matrimonial disputes in
particular, can never be binding unless agreed to by the parties to be. For court-referred
mediations, unless a settlement deed or a compromise agreement resulting from a successful
mediation is signed by all parties and submitted t o the courts, it will not become binding on the
parties. This was also held in the case of Afcons Infrastructure v.Cherian Verkay
Construction21.It is the courts recording the settlement/ compromise agreement and passing of
decree on the same that makes the result of the mediation binding.
20
AIR 2000 SC 2474
21
(2003 (1) SCC 49)
12
There are several advantages attached to mediation of matrimonial affairs such as confidentiality,
cost effectiveness, informal procedures, power of control, full freedom of parties to reject the
outcome, mutuality, etc. The most attractive and indispensable feature is that it follows the
principle of timely justice.
FAMILY PROPERTY DISPUTE MEDIATION
Disputes between family members over family property, estates, trusts and businesses; brothers
and sisters over partnership property; issues of inheritance or partition etc form the crux of such
matters. once the patriarch’s or matriarch’s control ends, the family members are often left in a
position of ambiguity about their rightful role. Disputes arise aboubt the said rights and liabilities
in that regard.
The tremendous financial cost of litigation is only one downside of an intrafamily lawsuit. Court
pleadings and proceedings are public. one of the principal advantages of private mediation over
litigation of sibling and intergenerational family disputes is the confidentiality provided in
keeping family fights from the public eye. The light of publicity often cements positions and
makes compromise more difficult. There are, many other advantages of working out a settlement
among warring family factions, including reconciling differences and healing. Courts are limited
in the remedies they can imp ose and framing family disputes in legal terms inhibits the parties’
ability to invent or accept creative solutions. Litigation rarely heals differences or promotes
understanding.
Family property and financial disputes, whether presented in the c ontext of a suit for partition, a
corporate fight, or a probate or trust case, are matters of both facts and the law. They present
challenges for how emotions and family dynamics are to be weighed against and balanced with
legal rights and obligations. A judicial decision or legal mandate may not address the underlying
family conflict or fully resolve the dispute. The desire to resolve the conflict and preserve the
family relationship is deeply embedded. In most family disputes there is a diss onance between
wanting to win by being proven right and desiring to make peace within the family. The role of
the mediator is to help the peace motivation prevail.
13
The participants in a family property or money dispute are more likely to reach a satisfactory
agreement by talking and exploring options with the help of a mediator than they are by going
through a judicial procedure in which a decision is imposed on them, whether by judicial decree
or by an outcome negotiated by their lawyers.. In mediation blame and anger can be lessened
through understanding, and the parties are encouraged to develop a commitment to the process
and to the agreement that they structure. Mediation is a proven way to avoid the long-term
adverse consequences of litigating family property, inheritance, and trust disputes.
In the case, Pokhar Singh v. Mt Dulari Kunwar22, a family arrangement has been defined as "a
transaction between members of the same family which is for the benefit of the family generally,
as, for example, one which tends to the preservation of the family property, to the peace or
security of the family and the avoidance of family disputes and litigation or to the saving of the
honour of the family.” the judgment has als o emphasized how such compromises and settlements
often turn out to be effective in both avoiding the burdensome litigation and protecting the
interests and sentiments of the family members
SUGGESTIONS-----PROGRESS TO BE ACHIEVED IN THE WAY OF MAKING
MEDIATION AND MANDATORY IN FAMILY DISPUTES
The Indian family is considered strong, stable, close, resilient and enduring. Mediati on can help
preserve this character of Indian family and reform and complement the formal dispute resolution
mechanisms. Making mediation mandatory for resolution of family disputes will provide
manifestation of the court’s commitment to a settlement seeking approach23. Further, compulsory
mediation in family disputes has had considerable success in countries like U.K. and Australia,
who have a well-developed infrastructure for carrying on family dispute resolution by mediation,
India must also make a similar attempt.
22
. AIR 1930 All 687
23
“The Family Dispute Res0luti0nMechanism in England and Wales”, (2003)HKLRC
14
The Family Courts Act may be amended suitably and a c ompulsory mediation clause must be
inserted. To maintain the voluntary nature of mediation, a provision may be made which
requires the parties to record acceptable reasons before the court for not opting for mediation24.
Provisions regarding qualifications for a family dispute mediator can also be specified.
Mediators facilitate communication and cooperation between the parties, they help them in
identifying the issues, clarifying priorities, exploring areas of compromise and find points of
agreement, resolution of family dispute requires therapeutic counseling as well, it is therefore
imperative that mediators should be skilled25, well trained and informed. Qualified mediators
will also increase the credibility and popularity of mediation.
Provisions must also recognize informal mediation via local mediators because a local
mediator who knows the local conditions and the parties may resolve the dispute in a much
better way than a stranger. In the Indian context, such recognition will facilitate alternative
dispute resolution as people are comfortable and satisfied when their stories are heard in an
informal local process.
Also, there is a dire need of the day in the current s ocial scenario, where 3o million Indians
live outside India, to create a law and infrastructural machinery for ADR mechanisms
(especially Mediation) in resolving marriages solemnized in India but which have been
fractured or broken abroad. often, they lead to inter-parental child removal custody conflicts,
disputes of maintenance and differences over settlement of matrimonial property. These cross
border marital conflicts should not lead to multiple problems.
CONCLUSION
The philosophy of alternate dispute resolution systems is well made out by Abraham Lincoln’s
famous words: “discourage litigation, persuade your neighbours to compromise whenever you
can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.”
These words spell out grim realty and truth.
24
The English Family Laws Act, 1996
25
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Litigation in respect of any matter concerning the family, whether divorce, maintenance and
alimony or custody, trial of juvenile offenders or any other matrimonial cause should not be
viewed in terms of failure or success of legal action but as a social therapeutic problem. It should
not be viewed as a prestigious dispute in which parties and their counsels are engaged in winning
or defeating, but as a societal problem needing resolution. The amicable settlement of family
conflict through Mediation requires special procedures designed to help people in conflict and in
trouble, to reconcile their differences, and where necessary to obtain professional assistance.
Family disputes need to be seen with a humanitarian approach and hence attempts should be
made to reconcile the differences so as to not disrupt the family structure. Adjudication of family
disputes is an entirely different matter than conventional civil or criminal proceedings. It is a
different culture and has a different jurisprudence altogether.26
The whole society feels the reverberations of a family dispute in society outside the home.
Whereas there already exist some provisions for conduct of arbitration, conciliation and the Lok
Adalats in different statutes, the need for a framework to regulate the ADR process as a whole
and Mediation in particular has been sought to be fulfilled by the Supreme Court of India. It has
done so by providing the final version of the Model Rules of ADR and the Model Rules of
Mediation, both framed by the Law Commission of India, in its orders passed in the case of
Salem Bar Association Vs Union of India27with a direction that all high courts should adopt these
with such modifications as they may consider necessary.’
It is time to introduce compulsory mediation in family dispute resolution as it will not only reduce
the backlog of cases but will also provide substantial justice to the parties particularly in the
Indian context where the family structure is such that members of a family are too
interdependent.
26
Law of Marriage & Divorce; Paras Diwan, (preface to the 1st Edition) 5th Edition.
27
(2003 (1) SCC 49)
16
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