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What is Divorce Mediation? |
What is Divorce Mediation?
“Being
a family means you are a part of something very wonderful. It means you will
love and be loved for the rest of your life.”
–Lisa Weed
Family protects us and family completes us. One way in which this family is enlarged is the union of two-person i.e. marriage. The concept of marriage varies in every personal law.
This sacred or contractual union comes to an end when the two
people find it inevitable to secure. Litigations are lengthy and mentally
affect not only spouses but also the whole family. Here enters mediation, a
much more effective procedure.
What is Divorce Mediation?
Divorce by the
process of mediation is known as Divorce Mediation. During this procedure, both
spouses meet a third party who acts as an independent, neutral and experienced
mediator. The mediator helps the spouses to resolve their matrimonial issues relating
to the divorce.
It is a type of private negotiation. Such proceedings usually take place in a room with only parties i.e. both spouses along with the mediator. The litigation process is time-consuming, costly, and exhaustive.
That is why mediation in divorce is
normally suggested as an alternative. The mediator dealt with disputes relating
to alimony, child custody, children's welfare, and marital property.
Types Of Matrimonial disputes- What is Divorce Mediation?
According to Hindu Law, marriage is a sacred union between two people. It is one of the samskaras in accordance with Vedic seers. This sacred union is unbreakable and even continues after death.
But, nowadays, we see rising disputes between the couples which lead them in front of the courtroom. Small matters pump up leading to divorce, therefore, such matters are referred to mediation first before the court proceeds with them.
Matrimonial disputes which arise between the spouses are due to the following issues:
i) Lack of
mutual compatibility;
ii) Lack of
trust;
iii) Financial
issues;
iv) Children and
their upbringing issues;
v) Lack of time
investment;
vi) Interference
of the third party;
vii) Physical
and mental cruelty by any spouse;
Laws relating to sending matters to Mediation in case of matrimonial disputes-What is Divorce Mediation?
There are many
legislations dealing with mediation, conciliation, and settlement before
litigation.
Section 16 of the Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2006, deals with the role of the mediator.
It states that the mediator will strive to provide resolution to parties in dispute.
He will communicate the view of one party to another party, help them to identify the issue, assist them with it, try to reduce their misunderstanding, and clarify their priorities, mediator will also help them to explore the area of compromise.
Parties will be allowed
to take decisions by themselves. He will not in any case impose the terms
relating to the settlement upon parties.
Section
89 of the Code of
Civil Procedure, 1908 gives privileges to the courts to refer the
matter for Alternate Dispute Resolution (ADR). This section states that if the
court finds that there exists an element of settlement between the parties then
the court will construct the terms for the settlement and then they will give
them to the parties in conflict so that they can observe the terms and the
court will receive those observations from the parties. After all these, they
will reformulate the terms and refer the parties for-
i) Arbitration;
ii)
Conciliation;
iii) Judicial
Settlement including settlement through Lok Adalat;
iv) Mediation.
Sections23(2) and Section23(3) of the Hindu Marriage Act, 1950 state that it is the duty of the court to bring reconciliation among the parties to the conflict before it proceeds to grant any relief under this Act, and
Sections 34(3) and Section34(4) of the Special Marriage Act, 1954, state that Courts will take a
step toward reconciliation between the parties who are seeking a divorce after
looking into the facts and circumstances of that case.
Section9 of the FamilyCourts Act, 1984 states that it is the duty of the Family Courts to
help parties to come down to a settlement.
Civil
Procedure-Mediation Rules, 2003 have laid down mandatory provision for mediation which entitles the Courts
to refer matters for mediation proceedings even if parties to the dispute have
not consented to it, especially, if there lies a scope for reconciliation
between the parties and the relationship between them is in the way that it
needs to be preserved example matrimonial disputes.
How Divorce Mediation is helpful for disputing couples in resolving disputes-What is Divorce Mediation?
The divorce proceedings are a very lengthy and exhaustive process. It takes a lot of time.
Especially with respect to matrimonial disputes, long-running cases impact
parties and their families emotionally and financially. The mediation process
helps the family to mitigate the impact of divorce.
When and what is the right time for divorce Mediation to be used-What is Divorce Mediation?
Divorce proceedings can be referred for mediation either before the trial or after the trial had already begun. It saves the cost of the prosecutors if referred before the trial.
After the trial, generally, the court refers to the matter
for mediation. The court may refer the matter for mediation irrespective of its
nature.
If parties decide to go for mediation before their trial it will help them to settle it uncontested.
It will be the duty of a mediator to help parties to work on the areas of problem and dissenting. This process of divorce is quick and easy.
In
case a trial for divorce has been started and a lawyer had entered into the
case, then also mediator can be appointed to help the parties to come to a
common conclusion and to negotiate the matter between them.
In many cases
where divorce matters include the child's custody, spouses enter into mediation proceedings to settle the matter amicably without hurting the child emotionally
and mentally.
In Mohd.Mushtaq Ahmad v. State (2015), the wife filed for a divorce petition and an FIR against her husband under Section 498-A of the Indian Penal Code.
The disputes between both the couple began after the birth of a girl child. The Karnataka High Court referred the couple for mediation under Section 89 Code of Civil Procedure, 1908. In the mediation proceeding, the dispute between them has settled amicably after which the wife quashed the FIR.
Karnataka High
Court reiterated that “the court can quash the FIR and the Criminal Proceedings
while exercising its inherent powers in order to meet the ends of justice”.
In K.Srinivas Rao v. D.A. Deepa (2013), the Court observed that Section498-A of the Indian Penal Code is not a compoundable offense but if parties to the dispute are willing and there appears an element of settlement in their dispute then the court has the power to direct parties to the mediation to explore the possibility to settle their dispute through mediation.
If the case
gets settled then the couples will be saved from the long trials and this will
ultimately reduce the burden from the courts and it is in the larger public
interest.
In GurudathK. v. State of Karnataka (2014), the court observed that "if the
dispute is with respect to the offense which is non-compoundable and in any
case, it relate to matrimonial disputes and the Court is satisfied that the
parties to the dispute can settle it amicably then Section 320 Code of CriminalProcedure, 1975 would not bar the power of the court to quash an FIR or
criminal complaint in relation to that offense.”
Techniques to get success in Divorce Mediation- Both sides-What is Divorce Mediation?
When, in
marriage, both spouses find that end of the marriage is inevitable, mediation is the best procedure to opt for, as it can lessen the cost and helps the
parties to relieve the stress of the process by escaping from the trials.
To get success
in the divorce mediation proceedings, it is important that-
i) Parties choose the right mediator after proper mutual
consent and satisfaction. It is important that both spouses agreed on a
mediator.
ii) Both parties should put forth their side of the facts
fairly and without any misinterpretations before the mediator.
iii) Don't hesitate to compromise for the sake of family and children. Divorce matters, sometimes, are just a clash of egos that affects
the entire family and especially children.
iv) It is good if parties must be specific relating to
the terms of the divorce settlement.
v) Parties have to understand that the mediation process
will take and give enough time for the settlement. It's not an overnight
process and parties have to be patient.
Benefits of Divorce Mediation over Divorce litigation-What is Divorce Mediation?
Divorce in India is dealt with under Hindu Marriage Act, 1955 for Hindus, Sikhs, Jain, and Buddhists, under Christian Marriage Act, 1872 and Indian Divorce Act, 1869 for Christians, under the Dissolution of Marriage Act, 1939 and The Muslim Women(Protection of Rights on Divorce) Act, 1986 for Muslims, under the ParsiMarriage and Divorce Act, 1936 for Parsis and under Special Marriage Act, 1954 for marriages under this Act.
Usually, in divorce litigation on mutual consent,
the case takes a minimum of 6 months and a maximum of 18 months time. While in
other cases, it went up to 2-3 years or even more.
While divorce matters which prefer mediation proceedings have the following benefits:
i) Low Cost
ii) Time consuming
iii) Amicable proceeding
iv) helpful and better for children
v) No further litigation