DJN Blogs

Archi Agarwal, pursuing BA LL.B. (Hons.) from Aligarh Muslim University.
Date: 18.11.2020
SCOPE OF MEDIATION IN MATRIMONIAL DISPUTES IN INDIA
INTRODUCTION
The Alternative Dispute
Resolution mechanisms are complementary to Court proceedings and are gradually
gaining more and more importance. The most significant feature of ADR
Techniques is that the litigants are not chained by the technical procedure of
the ordinary courts. The society, state and the parties to the dispute also
have a duty to settle the dispute before it affects the family, business,
society or ultimately humanity as a whole, because in a civilized society The
rule of law should prevail and principles of natural justice should apply and
Complete justice should result.
Mediation is one of the
Procedure or technique of Alternative dispute resolution. Mediation is the
facilitation of a negotiated agreement by a neutral third party who has no decision
making power. Mediation is now recognised as one of the quickest and most cost
effective way of resolving a dispute and is the most common form of ADR.
Prior to Covid-19 our
court system facing so many loopholes likes congested calendars or Large number
of cases, a limitation or shortage of judges, depleted support staffs, and
simply a shortage of time for judges to deal with each and every cases or
commit to an active effort to engage the parties in settlement of their dispute.
As a result of it, cases are left unheard for so many months, and even years
until reaching standards and goals for the case. This results in a needless
waste of time and wastage of money from both sides.
In present time, the covid
pandemic has led to a virtual shutdown of the court system. Civil trials have
been suspended as mass gathering is not possible in the current situation. No Court
appearances are taking place. In essence, cases have been left in limbo. A
virtual standstill.
MEANING OF ALTERNATIVE
DISPUTE RESOLUTION
The ADR is a technique of
dispute resolution through the intervention of a third party. An arbitration
process settles the disputes outside the court. ADR brings the parties to the
negotiating table, identifying problems, establishing facts, classifying issues,
developing the option of settlement and ultimately solving the disputes through
award which is binding on the parties. If the parties cannot settle the dispute
themselves and decided to bring in a third party they have some control over
the process but not necessarily over the solution.
MATRIMONIAL ISSUES
Matrimonial issues are
considered to be a private matters of a family and the parties don’t want that
their private matters comes to the knowledge of the public and tried to sought
the same by themselves or by seeking the help of the third party. From here the
importance of mediation comes into picture, now the parties seek to the
Mediator in order to resolve their disputes as in the court proceedings or in
litigation there is no such kind of confidentiality, and also it’s a time
consuming process and more expensive too as compared to the mediation process. In
Mediation process, parties themselves decide the settlement terms and it’s a
speedy resolution process where information disclosed is not revealed to anyone
and it preserves the relationship which may be destroyed by court litigation.
MEDIATION
Mediation is a process in which an impartial / neutral third party – a mediator facilitates the resolution of a dispute by way of amicable agreement by the parties to the dispute. Impartiality, neutrality and independency are assets of a mediator so a mediator must not be a partial or biased one.
COMPONENTS OF MEDIATION
ARE
·
Impartiality
·
Competence
·
Confidentiality
·
Self
determination
· Voluntary
ADVANTAGES OF MEDIATION
·
Option to choose own Arbitrator or
Mediator – The parties can often
select the arbitrator or Mediator to resolve their issues.
·
Selection of time and place for
hearing by the parties – The
parties can select the particular time and place for mediation procedure according
to their convenience.
·
Simple and Flexible procedure – Mediation
follows simple procedure as compared to the courts. Procedure which saves a lot
of time to the parties and follows informal ways for resolving the dispute.
Therefore, parties are free to express themselves without any fear of court of
law.
·
Maximum Chances of Restoring
Relationship – There are maximum chances
to restoring relationship in mediation because parties discusses their issues
together on the same platform and it also prevents further conflict and
maintain good relationship between the parties.
·
Speedy Resolution – Mediation
is the only method for speedy resolution of cases, and provides much quicker
resolution as compared to the courts.
·
Improves understanding of parties – Mediation
provides an option to the parties to discuss the issues and help the parties to
overcome the misunderstanding between the parties and this process helps to get
an understanding between the parties.
·
Scope of creativity – Mediation
handles the issues and resolves the issues creatively which is very necessary
to resolve the critical matters.
·
Confidential procedure – The
mediation procedure is very confidential which helps the parties to feel
comfortable and express their views without hesitation.
·
Expert Determination – The
issues will be on different departments which require subject matter experts to
resolve the issues. And mediation gives an option to choose the particular
subject matter expert at the time of resolving the issues.
·
Maximum Participation of parties – There
is an option for the parties to discuss and express their views which is not
possible in the court procedure. Hence, in mediation their will be Maximum
participation of the parties.
·
Enforceability of Mediator decisions –
The
decisions provided by Mediator can be enforced easily.
·
Less Expensive – The
Mediation procedure is cost effective as compared to the court proceedings.
·
ADR aims of achieving a settlement or
resolution – The main aim of Mediation is resolving
the issues effectively, providing the solution in cost effective manner, within
less time and by maintaining confidentiality.
·
Avoids Litigation – Through
mediation lengthy litigation process can be avoided and uncertainty and
dissatisfaction experienced in the court can also be avoided. There is a Win –
Win positions for the parties.
· Improves Communication – Party openly discuss their real / underlying disputes. Parties share information leading to a better understanding of issues and this enhanced communication lead to a mutually satisfactory resolution.
DISADVANTAGES OF
MEDIATION
·
ADR is not suitable for every
disputes – ADR may not be suitable for every
situation; even if appropriate, it cannot be invoked unless both parties to a dispute
are genuinely interested in a settlement.
·
ADR methods are not certain –
The ADR methods are flexible but the methods are not certain, there is no
certainty of rules and regulations which must be followed.
·
ADR may not be as effective as court
proceedings – In ADR parties can choose their own rules
or procedure for dispute settlement. Hence, ADR may not be as effective as
court proceedings.
·
No Guarantee of resolution – Every
issue is not resolved effectively, so there is no guarantee of resolution in
ADR.
· Precedents are not followed – There is no rule in ADR that the judgement of one case is to be followed in other similar cases. Therefore, there is no certainty in the procedure.
PROVISION
UNDER ARBITRATION AND CONCILIATION ACT AND THE CODE OF CIVIL PROCEDURE
The
use of mediation in India is promulgated under the Arbitration and Conciliation
Act, 1996 and the Code of Civil Procedure, 1908 (CPC). Section 30 of the
Arbitration and Conciliation Act states that an “Arbitral Tribunal may use
mediation to encourage settlement of disputes”.
Settlement
of disputes outside the Court:– (1) Where it Appears to the court that there
exist elements of a settlement which may be acceptable to the parties, the
court shall formulate the terms of settlement and give them to the parties for
their observations and after receiving the observations of the parties, the
court may reformulate the terms of a possible
Settlement
and refer the same for–
A
. Arbitration;
B
. Conciliation;
C
. judicial settlement including settlement through Lok Adalat; or
D
. Mediation.
(2)
Where a dispute has been referred–
(a) For
arbitration or conciliation, the provisions of the Arbitration and Conciliation
Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the provisions of that Act;
(b) To
Lok Adalat, the court shall refer the same to the Lok Adalat, in accordance
with the provisions of sub-section (1) of Section 20 of the Legal Services Authorities
Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in
respect of the dispute so referred to the Lok Adalat;
(c) for
judicial settlement, the court shall refer the same to a suitable Institution
or person and such institution or person shall be deemed to be a Lok Adalat and
all the provisions of the Legal Services Authorities Act, 1987 (39 of 1987)
shall apply as if the dispute were referred to a Lok Adalat under the
provisions of that Act;
(d) for
mediation, the court shall effect a compromise between the Parties and shall follow such procedure as may be
prescribed.
PROVISION UNDER HINDU
MARRIAGE ACT AMD SPECIAL MARRIAGE ACT
As per the provisions of
sections 23(2) and 23(3) of Hindu Marriage Act, 1950 and sections 34(3) and
34(4) of Special Marriage Act, 1954, the Courts are directed to make an
endeavour to bring reconciliation between the parties seeking a divorce
according to the facts and circumstances of a case.
CASE LAWS
B.S. Joshi & Ors. Vs.
State of Haryana & Anr.
Court held in this case
is that the criminal proceedings can be quashed by the High court at his own
discretion by making the use of his power vested in the court according to
Section 482 of Criminal Procedure Code. Its an appeal petition was filed to the
Supreme Court. An FIR had filed by the wife against the husband and later,
according to wife, there is no such problem in their relationship and the same FIR was filed without thinking
or reason and impulsively. So, According to the Supreme Court, courts should
uplift or encourage reconciliation or Mediation especially in the matrimonial
disputes of these kind.
Afcons Infrastructure
Ltd. Vs. Varkey Construction Co. Pvt. Ltd.
Afcon Infrastructure
Ltd. V.
Varkey Construction Co. Pvt. Ltd. is one of the most famous cases dealing with
mediation. It is a landmark judgement in which the court held that outcomes or
result of the mediation should be demonstrate to the court and reasons for
giving the choice of mediation shall also be recorded when the court referring
the parties for mediation
Manas Acharya vs. State
& Anr Case
In Manas Acharya V. State
and Anr case the court issued an even more pro mediation approach wherein it
highlighted that the settlement obtained in mediation or the decision taken by
the mediator is legal and valid one and whatever decision is taken in the
mediation process is binding on both of the parties.
Mohd. Mushtaq Ahmad v. State, the wife lodged a divorce petition and also a FIR against the husband under Section 498A of IPC as disputes has been arose between them after birth of a female baby child. The province judicature administered the parties to go for mediation under Section 89 of CPC. The matter was settled companionably through the process of mediation when the wife determined to take back the FIR filed by her. The Court allowed this by stating that the court in exercise of its inherent powers will quash the criminal proceedings or FIR or grievance in applicable cases so as to fulfil the ends of justice.
CONCLUSION
Under
Alternative Dispute Resolution (ADR), Mediation is a great for get the justice.
It is because Alternative Dispute Resolution easy to settle out the problem as
it is cost effective, speedy, expertise, accessibility, give maximum chances of
restoring relationship between parties, simple and flexible procedure involved
and less adversarial. In Alternative Dispute Resolution each conflict that
happens will get solved with very simple steps. Alternative Dispute Resolution
can resolve outside from court. Each decision who judge make not will give hostility
to the parties. It is because, Alternative Dispute Resolution very give
pressure especially in conciliation. This is because, Alternative Dispute
Resolution takes a more interventionist role and also takes suggest possible
solutions. So, exactly not earn gainsay of Alternative Dispute Resolution is a
very easy to got justice for resolve each the conflict that come. So, Mediation
is a best way to resolve the dispute, particularly in matrimonial cases.
Recent Comments