Use of Mediation Before Filing Divorce – Boon or Bane

Author: Jay Gajbhiye National Law University, Odisha

Student Editor: Aryan Mehta New Law College, BVDU, Pune

“Discourage litigation, persuade your neighbors to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time”

– Abraham Lincoln

INTRODUCTION

Marital and family relationships are neither simple nor secured for a large number of adults and young people. According to recent research, of 13.8 million children in the US, “25 per cent of those under eighteen years of age live with only one parent and 5 million children in two folk homes live with a biological parent and step-parent”, with 0.5 per cent of the marriages ending up in divorce. Instead of wasting too much time in a structured court case, an individual may then go to a mediator for conflict resolution. In these days, as mediation is very common, some states in the USA are using divorce mediation very consistently and generally, for example,  Texas and Connecticut. To save time and energy, the best alternative method, such as mediation, must be adopted in large numbers.

Divorcing couples should continue with the least aggressive method of separation i.e. mediation and regard their option positively and inclusively. Because the family issues are turning into stressful positions, divorce has also become particularly common. A divorcing spouse understands that the divorce clearly will not stop all about the union, even though it breaks the civil relationship between a husband and a wife. Mediation, known jointly as a “different dispute resolution”, can be used by an impartial third person (usually additional than one person) to help two disputing parties settle disputes through correlative concession and face-to-face negotiations. A mediator should be a knowledgeable, competent individual who would not compel the parties to support them with their discussions by affecting the party’s choices. A mediator should rather encourage the parties in understanding and enabling them to negotiate in practical faith which brings fruitful results in the future.

THE SIGNIFICANCE OF MEDIATION PROCEEDINGS

Specific benefits of mediation should be seen for divorces, contract agreements, and other conflicts, with a view of stopping the matter from being taken to trial. These are charges, secrecy, monitoring, reciprocity, enforcement, and assistance.

When a mediator pays a fee close to that of a prosecutor, the mediation phase typically requires far less time than bringing a lawsuit through normal legal networks.

Although it can take months or years for a judge to settle a dispute in the custody of a prosecutor, mediation typically finds a settlement in a matter of hours. Taking less time allows parties to waste less money on work hours and expenses. Here are a few ways.

Control – Mediation enhances the authority over the resolution by the parties. The parties seek a settlement in a legal dispute, but the power lies with the judge or jury. A lawyer or jury also cannot provide substantive remedies in mediation. Mediation is most expected to achieve a mutually beneficial outcome for the parties.

Compliance – Compliance with the negotiated arrangement is generally strong as the outcomes are reached together by the parties and is mutually agreed. It also eliminates expenses, as the parties do not have to hire a prosecutor to deal with the arrangement. Nevertheless, the negotiated deal should be implemented entirely in a court of law.

Mutuality – Mediating parties are usually expected to work closely towards a settlement. The sides are also more inclined to consider the other party’s perspective and thus more likely to compromise on the fundamental problems. It has the additional benefit of preserving the partnership between the parties until the confrontation,

SOME DISADVANTAGES OF MEDIATION

  1. One party will seek to control the other and a prosecutor can only account for the difference here.

  2. Others claim that the decrease in the importance of counselling and the high cost of lawyers is attributed to their good business experience and can, therefore, forecast the correct result of the case more precisely.

Every divorcing pair would then seek to fix their marital problems inside themselves. If they can’t do that, at the very least they need nothing from each other and should bear the mediation process that leads to a conclusion. The typical adversarial method can be a final recourse (taking into consideration the prices) in certain conditions where the two partners cannot achieve an agreement.

IMPACT OF MEDIATION PROCEEDINGS

Mediation is used to reduce the consequences of an adversarial divorce. When parties contest each issue with tenacity and carefully discuss each procedure, both lawyers and court charges accrue. Mediation tries to avoid this ruinous dispute. Furthermore, when partners efficiently agree with themselves, they are much more likely to respect the agreement so that relitigation or modification costs are avoided. It further reduces the responsibility of the proceedings, which protects the economy.

A further advantage typically attributed to mediation is that it allows parties to control their destiny and to find solutions more suitable for their needs. The benefit of mediation can also be the reduction of mental trauma, as the judicial system is not intended to serve emotional needs. The consultation also refers in turn to the breakup of the marriage. The severance of a close relationship such as marriage can cause considerable anxiety, which can exacerbate the procedure later unanswered. Mediation enables relational problems to be addressed by honouring one another and eliminating responsibility.

STATUTORY PROVISIONS

Various provisions of law provide for conciliation and settlement before proceedings in the Court.

“Section 89 of the Code of Civil Procedure, 1908” provides “for alternative dispute resolution mechanism to be followed in the cases where there is a possibility of settlement”.

Mediation is one of the methods for finding a peaceful compromise as specified in section 89 of CPC, 1908. However, in this segment, agreement of all parties is required, and sometimes one party is reluctant to mediate in matrimonial disputes.

In “section 23(2)” and “section 23(3)” of the “Hindu Marriage Act, 1955”, “A court is directed to try reconciliation between the divorce-seeking parties, depending upon the nature and circumstance of a case”. The option to be adopted by the Court at the first instance in divorce cases is making reconciliation, same as laid down in “section 34(3)” and “section 34(4)” of the “Special Marriage Act, 1954”.

Family courts aim to resolve marital conflicts whenever possible. The principle of compulsory mediation was adopted for the first time in 2003 under the Civil Procedure-Mediation Law. Family and matrimonial conflicts are subject to formal mediation because it is in the scope of the law to preserve connections between the parties.

Mediation is one of the most popular procedure in divorce cases and multiple mediation centres had been developed across the country for the fast disposal of cases.

CASE LAWS

Some Cases related to mediation proceedings are:-

  1. The Counsel relied on “ Srinivas Rao v. D.A. Deepa”[1], in which it was held that “A marriage which is dead for all purposes cannot be revived by the court’s verdict if the parties are not willing”.

  2. In “Aviral Bhatla v Bhavana Bhatla”,[2] the Supreme Court confirmed the resolution of the dispute, appreciating the successful way, the Delhi High Court assisted the parties to find a compromise through the Delhi Mediation Centre.

  3. In “Gaurav Nagpal vs Sumedha Nagpal”,[3] the Hon’ble Supreme Court noted that the flooding of courts with divorce cases is a very distressing phenomenon. The divorce clauses in HMA Act, 1955 categorizes circumstances in which a divorce order can be sought. Only when such a path is open, people would generally not be allowed to pursue a divorce, until marriage has irreparably broken down.

CONCLUSION

Mediation is a method of discussion. Individuals participating in the consultation process engage in this procedure implicitly and full agreement. Disputes are resolved through a process supervised by a mediator. The purpose of mediation is to provide the parties with a reasonable, impartial, timely judgment or conclusion. Today, however, the subject concerned is divorce. Mediation in cases concerning divorce is a necessary process and must be carried out before going to trial. The pressure of the court is declined through mediation, and the sides are able to make their argument known to each other firmly. Mediation is a non – legal and informal method for divorcing couples. Meditation centres do not move the view but provide couples with ways to separate their marriage breaks. During the counselling procedure, the divorcing spouses can offer their marriage another chance or file a divorce petition within the court. The divorce becomes a consensual divorce with the consent of both of the spouses following the mediation procedure. “Section 9 of the Family Court Act, 1984”[4] also requires couples to go through the consultation process before they proceed to the trial. Mediation is also a must for all divorcing partners to give their marriage another chance.

[1] K Srinivas Rao v D.A. Deepa (2013) 5 SCC 226.

[2] Aviral Bhatla v Bhavana Bhatla (2009 SCC (3) 448).

[3] Gaurav Nagpal v Sumedha Nagpal (2005) 140 PLR 636.

[4]  “S. 9 of the Family Court Act, 1984. Duty of Family Court to make efforts for settlement”.

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