Authored by - Mr. Deepanshu Gurnani
Designation - Associate Partner, MediateGuru
There are nearly 27 million cases pending in the Indian Judicial system, out of which 55,000 cases comprises of disputes relating to divorce. Litigation is considered to be a costlier and a time consuming process when compared to alternative dispute resolution. As it was rightly said by William E. Gladstone “Justice delayed is Justice denied.” Which directly relates to the principle that if justice is not timely adhered to, it directly amounts to denial of justice.
Alternative dispute mechanisms such as mediation, arbitration, conciliation, and negotiation have gained popularity over time due to its speedy process of settling disputes. These types of forums help both the parties to resolve their disputes ‘outside the court room’ and to seek relief without being involved in litigation.
Mediation has been accepted as the most preferable mechanism for solving disputes worldwide. In the recent years it has emerged as one of the most pre-eminent way to solve disputes. Mediation can be defined as a form of Alternative dispute resolution (ADR) that helps two or more disputants in reaching to an agreement. Despite the parties coming to common consensus, or whatever the ramification of the agreement might turn out to be, the parties themselves determine the contents of the agreement rather than accepting something which is imposed on them by a third party.
It can also be defined as the process where a person acts as a facilitator or as a catalyst to try and resolve the disputes between two or more disputants by assisting them to explore each other’s point of view and enabling them to gradually come to a settlement.
Mediation is a faster way of resolving disputes as well as it is a lot cheaper than litigation. It also provides both the disputants to reach to an agreement by deciding the contents of the agreement on their own and not being imposed by a third party. It basically helps the party to reach to creative solutions which might not be possible when it is imposed by a third party legally.
Matrimonial mediation is different from mediation in the context of commercial and property disputes as it involves certain factors which are not present in other disputes such as emotions, social compulsions, the views of both the parties regarding life in general, personal liabilities and responsibilities of the parties, sentiments and so on. It is to be kept in mind while talking the terms of mediation in matrimonial disputes that the factors that help the disputants to reach to a settlement are not just rational factors.
The mediator cannot just simply focus on the monetary terms and keep aside the emotional factors. The mediator should be more concerned with the happiness of the disputants which is more of a sentient than of a reason and help them amicably to reach to an agreement which brings about lasting peace.
Matrimonial mediation has some problems while dealing with the cases of domestic violence, as it is often criticized that mediation is ineffective as the offender simply gets away with the offence rather than being punished under the State’s orderly penal apparatus. However it is considered to be a favourable mechanism as it provides speedy justice, it safeguards the family relationships, and moreover helps the children in not going through a traumatic stress which ordinarily attached to a typical divorce.
The use of mediation is enforced under the Arbitration and the Reconciliation Act, 1996 and the Code of Civil Procedure, 1908 (CPC). It is stated in Section 30 of the Arbitration and Conciliation act that “Arbitral Tribunal may use mediation to encourage settlement of disputes” and it is stated in section 80 of CPC “courts may refer the parties for mediation if it appears that there exists an element of settlement”.
There are several advantages in solving disputes of matrimonial nature through mediation such as confidentiality, informal procedures, mutuality; freedom of the parties to reject the outcome, cost effectiveness, power control etc. and the most important factor is that it provides speedy justice to the disputants.
But every coin has two sides. There are certain disadvantages also while solving disputes of matrimonial nature through mediation. The main problem that is faced is that both the parties are aiming to take vengeance with the other party rather than amicably solving the situation and reaching an agreement. The mediator therefore has to mould himself for herself to help the parties to lead the parties to reach to an amicable agreement that brings about lasting peace.
What most of the people argue is not related with the legal or financial issues, but rather they are related to the desire of seeking revenge from the other party. The proposal for the solution can come through the mediator or the parties themselves. The main job of the mediator is to bridge the gap between the disputants regarding the settlement to arrive at consensus.
Once both the disputants are helped and supported to resolve the emotional and the social issues, the disputants can focus on legal and financial issues respectively.
The judiciary has shown no hesitation in settling matrimonial matters through the medium of mediation from time to time:
In the case of Mohd. Mushtaq Ahmad v. State, where the wife filed a FIR against her husband alongside a petition under section 498A of the IPC after their arose disputes subsequent to the birth of the girl child. The disputants were directed by the Karnataka High Court to go through mediation under section 89 of CPC. The matter was settled subsequently and the FIR was quashed thereafter. The court allowed this by stating “The court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice.”
It was held by the court in the case of Gurudath K. v. State of Karnataka that “Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably … Section 320 CrPC would not be a bar to the exercise of power of quashing of FIR or criminal complaint in respect of such offences.”. The court allowed the settlement decided by the disputants and came to the conclusion that the wife was under no threat or coercion for the same.
Therefore there is criticism in the ways of mediation, as through this move of the Indian courts many accused are less apprehensive of being convicted. Hence critics of mediation held it to be ineffective as the offender gets away without being convicted.
It was held by the court in the case of K. Srinivas Rao v. D.A. Deepa that “though offence punishable under Section 498-A IPC are not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation…. The Judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law…. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest.”
In the case of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. the Supreme Court held that “even when a case is referred to a mediator the court retains its control and jurisdiction over the matter and the mediation settlement will have to be placed before the court for recording the settlement and disposal”. This shows that the court is attempting to avoid mediation to carry out arbitrarly.
Every case has its own unique facts and factors on which it is decided. There should be no specific guidelines on what can be suggested to mediation, specifically in the cases of Domestic violence. It is essential to look at the facts of each case carefully and decide whether mediation would be a viable option or not. The cases involving Domestic violence cannot be decided through precedents unless the facts appear to be identical. There shouldn’t be any specific guidelines for which cases are to be referred to mediation or not. Each case is of different magnitude and must be judged by analyzing the facts of the case and discomfort caused to the victim carefully. The Indian courts are headed in the right direction in dealing with cases of this nature.