What is divorce mediation ?
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