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Abstract:

If necessity is the mother of invention, conflict is its father”, very well-articulated by acclaimed philosopher  Kenneth Kaye .Conflict or dispute in any matter whether it is civil or matrimonial has become very frequent and humdrum nowadays and the only source to solve them is our Indian Judiciary but the irony  is  that ,it is itself loaded with burden of imminent and forthcoming cases which itself hinders the concept of  potent  justice and fair play and principle of Natural Justice that is Justice Delayed is Justice Denied. So in these types of situations, alternative dispute resolution system comes to the rescue which tries to solve the dispute outside the court in less time and more economically and mediation is one of them. The utilization of mediation in Asian nation is published below the Arbitration and Conciliation Act, 1996 and also in the Code of Civil Procedure, 1908 (CPC). Mediation in its simplest kind, is a method during which a neutral third party assists disputants to succeed in a voluntary and negotiated settlement of the problems, under consideration. The intercessor facilitates the communication between disputants in order that they will clearly perceive the distinction and crafts a reciprocally acceptable settlement, however he has no power to impose a choice upon the parties. Mediation has emerged as the most generally accepted dispute resolution mechanism for subsiding marital status disputes. There are many blessings hooked up with mediation in context to  marital status affairs like confidentiality, price effectiveness, informal procedures, power of management, full freedom of parties to reject the end result, mutuality, etc. and the foremost engaging and indispensable feature is that it follows the principle of timely justice. This paper highlights various provisions with regard to mediation and its role and importance with special reference to marital status dispute in Asian nation.

I. INTRODUCTION

“If necessity is the mother of invention, conflict is its father”, very well-articulated by acclaimed philosopher  Kenneth Kaye .Conflict or dispute in any matter whether it is civil or matrimonial has become very frequent and humdrum nowadays and the only source to solve them is our Indian Judiciary but the irony  is  that ,it is itself loaded with burden of imminent and forthcoming cases which itself hinders the concept of  potent  justice and fair play and principle of Natural Justice that is Justice Delayed is Justice Denied. India being a common law country follows the  Associate adversarial system of justice and  in recent years, the role of the judiciary has distended and has become a lot of complicated in nature. The increasing role of the judiciary has resulted in immense expenditures and undue delays in delivering justice to the seeker of justice. The quantity of courts has accrued in the recent years, however the matter still exists attributable to the likewise increase within the range of cases. So in these types of situations, alternative dispute resolution system comes to the rescue which tries to solve the dispute outside the court in less time and more economically and mediation is one of them. various dispute resolution like mediation shows the importance of Article 21, that stands for right to life and  includes the  right to possess a speedy trial The utilization of mediation in Asian nation is published below the Arbitration and Conciliation Act, 1996 and also in the Code of Civil Procedure, 1908 (CPC). Mediation in its simplest kind, is a method during which a neutral third party assists disputants to succeed in a voluntary and negotiated settlement of the problems, under consideration. The intercessor facilitates the communication between disputants in order that they will clearly perceive the distinction and crafts a reciprocally acceptable settlement; however he has no power to impose a choice upon the parties. Mediation has emerged as the most generally accepted dispute resolution mechanism for subsiding marital status disputes. The advocates of mediation hold mediation to be a favorable mechanism because it safeguards family relationship and   also the kids from having to expertise the severities of the traumatic method, usually hooked up to a typical divorce and conjointly gives speedy justice. There are many blessings hooked up with mediation in context to  marital status affairs like confidentiality, price effectiveness, informal procedures, power of management, full freedom of parties to reject the end result, mutuality, etc. and the foremost engaging and indispensable feature is that it follows the principle of timely justice. With regard to force cases, Section 12 of the Protection of women from domestic violence Act, 2005 clearly lays down that an adjudicator should eliminate a case below this Act under 60 days. However, this provision is never compiled or pursued.

II. MEANING OF MEDIATION

Mediation is a  autonomous and discretional  method within which a competent , skilled  and impartial person, the mediator , helps the parties in hand to achieve associate degree well-meaning settlement or in simple words peaceful and harmonious arrangement  that is  attentive to their wants and acceptable to any or all sides. The mediator brings the parties in dispute face-to-face in an exceedingly non-public and confidential setting and every party   have the chance of maintaining his purpose of laying down his contentions  and paying attention to what the opposite party has got to say. The so called mediator  doesn’t impose a call on the parties but however the mediator  facilitate the parties to debate and choose the  matters that are in hand , explore every party’s real wants and interests , expand  the settlement choices and assess the foremost appropriate answer and in last draw up the settlement agreement thoroughly,  once the parties have in agreement to resolve every matter in hand.

Mediation could be a charismatic, meticulous and communal or conjoint method where  a neutral third party assists the disputing parties in partitioning the conflict through the appliance of specialised communication and negotiation techniques. All the participants in mediation are inspired to actively participate within the method. Mediation could be a “party-centered” method in which the focus is primarily upon the wants, rights, and interests of the parties. The mediator uses a good style of techniques to guide the method in an exceedingly constructive direction and to assist the parties to realize their optimum answer. A mediator is helpful in this  because she/he manages the interaction between parties and facilitates open communication between them . Mediation is additionally appraising in this because the mediator analyzes the  problems and provides various  relevant norms , whereas refraining from providing prescriptive recommendation to the parties

Mediation, as utilized in law, is  a kind of alternative  dispute resolution  system whereby the third party that is the mediator partitions the  disputes between two  or additional parties with concrete effects. Typically, a third party, the mediator, assists the parties to barter a settlement.  The disputants could mediate disputes in an exceedingly style of domains, like business, legal, diplomatic, workplace, community and family matters.

The term “mediation” generally refers to any instance within which a third party helps others to reach  to an agreement.  Additionally and specifically, mediation encompasses a structure, timetable and dynamics that “ordinary” negotiation lacks. The method is non-public and confidential and is probably implemented by law. Participation in this method is usually and totally voluntary. The mediator acts as a neutral third party that facilitates the disputants instead of directing the method. Mediation nowadays is turning into a additional peaceful and internationally accepted method so as to finish the conflict. Mediation are often used to resolve disputes of any magnitude.

Mediators use numerous techniques to open, or to  improve dialogue and fellow feeling between the disputants and also attends to facilitate the parties so that they can reach the  associate degree agreement. The success of mediation process  depends  a lot upon the  mediator’s talent , coaching and his mediating skills to solve the dispute.

III. HISTORY OF MEDIATION

The mediation has its essence in the ancient times or in other words the mediation has its roots in the ancient era. Historically,  mediation was made  to settle many alternative varieties of disputes.  These disputes include  international disputes, industrial disputes, and labour disputes. Outside the courtroom,  mediation are utilized by persons engaged in  business worldwide to settle their industrial disputes. The system or form  developed in Ancient Balkan nation where the non-marital intermediary  were known as a proxenetas  and  then the Roman civilization also recognized mediation and its importance . The Romans referred to as  mediators by a range of names, together with internuncius, medium, treater, philantropus, interpolator, pacifier, interlocutor, interprets, and eventually intermediary.

Some cultures regarded the intermediary as a sacred figure, ought to have explicit respect and they also overlapped the role played by ancient wise men or leader. Members of peaceful communities often brought disputes before native leaders or wise men to resolve native conflicts. This peaceful technique of resolution conflicts was significantly current in communities of Confucians and Buddhists.

Mediation has been used as a technique of dispute resolution in   different cultures for quite  3000 years. Tracing the roots of this form or system has been a journey of culture, understanding, translation, war and peace.

The petty disputes in the villages were brought before the elder headman or before the panchayat  for resolving in the ancient times before 1940. Then it was realized that this method of resolving disputes was better than courts and was cheaper and friendly with the needs of the disputing parties. Therefore arbitration act ,1940 was enacted to promote alternative dispute resolution but this act had many loop holes ,so to overcome these defects various amendments was made and then arbitration and conciliation act,1996 was enacted . This act promoted various alternative dispute resolution and hence mediation rules, 2003 was made to give definition and growth to mediation . And in this way mediation came in the modern era as a dispute resolution system.

IV. ROLE OF MEDIATION IN MATRIMONIAL DISPUTE

As rightly said by William E. Gladstone that if Justice is  delayed it means  justice  is denied. This implies that if the principle of timely justice isn’t adhered to, it’s equal to a whole negation of justice. This downside is prevailing within the Indian judicatory wherever there’s a backlog of nearly twenty seven million unfinished cases out of that, about 55000 comprise of disputes regarding divorce. This impediment in getting timely justice has resulted in alternate dispute resolution mechanisms like negotiation, mediation, arbitration and conciliation gaining regard and acceptance because of their speedy nature of subsidence disputes. These forums give a platform for parties to hunt relief while not involving proceedings, therefore virtually “outside a courtroom”.

Abraham Lincoln  has also supported mediation by stating that Discourage proceedings and Persuade your neighbours to compromise whenever you can and  illustrate to them however the nominal winner is usually very a loser – in fees, expenses and waste of your time. As a peacemaker, the attorney contains a superior chance at being a decent man .

Mediation is that effective remedy which focuses on the non-coercive and accordant method.  This methodology of dispute resolution not solely save time however additionally diminishes the acerbity and unloved relationships ensuing from proceedings. Mediation is prevailing these days within the U.S and in foreign countries, as well as North American nation and European nation as well in India.

Mediation is very useful in family disputes because family matters involve not solely the law and facts, however additionally feelings. Mediation within the context of marital dispute is completely different in its kind and content from the context of business and property disputes. The marital disputes are distinctive and antithetic from different styles of disputes on account of presence of bound factors that aren’t obtained in different disputes. These factors embrace and constitute motivation, sentiments, social compulsions, personal liabilities and responsibilities of the parties, the views of both the parties relating to life generally and to the establishment of wedding specially, the safety for the long run life, thus on then forth. Talking in terms of the mediation for marital disputes one should bear in mind that the factors that weigh the selections of the parties aren’t controlled just by rational factors. Within the context of marital disputes the intermediary cannot simply consider the financial or mundane facets and overlook the emotional aspect.

The intermediary needs to prepare both the parties to appear for an answer. The intermediary here needs to mould himself or herself into a counsellor and a mediator to guide the parties for an amicably acceptable answer that brings lasting peace. The intermediary might ought to provide recommendation to both the parties and will even have to coax them so as to form them see acceptableness of a planned answer. The proposal for the answer might come back from either the party or the intermediary himself.  The task of the intermediary would be to ceaselessly bridge the gaps within the proposals to attain accord.

The advocates of mediation hold mediation to be a favourable mechanism because it safeguards family relationships and specifically kids from having to expertise the severities of the traumatic method usually connected to a typical divorce and additionally give speedy justice.

Whereas  the critics of mediation hold mediation to be ineffective because the offender escapes while not being fined through the State’s orderly penal equipment.

There are  many blessings and eminence  connected to mediation of marital affairs like confidentiality, price effectiveness, informal procedures, power of management, full freedom of parties to reject the result, mutuality, etc. the foremost engaging and indispensable feature is that it follows the principle of timely justice.

Sometimes Court itself refers the case to mediation in case of marital or matrimonial dispute for speedy justice. The court’s intention to settle matters as amicably as attainable is obvious. The intention of the court matches the ideology of the advocates of mediation,  that is to safeguard family relationships and supply speedy justice.

As we have a tendency to continue within the early years of the twenty first Century, our courts and legislatures have provided the bottom work for the resolution of disputes outside of the court.  In fact, our courts have voiced a glowing acceptance of alternatives dispute resolution such as mediation, arbitration  to traditional court dispute resolution and there’s sturdy judicial approval for the employment of arbitration and mediation.  However, the procedures for implementing these various dispute resolution approaches aren’t clear. Therefore mediation is very helpful in matrimonial disputes due to its various factors such as confidentiality, privacy, speedy justice, economical and less time consuming.

V. VARIOUS JUDGMENTS SUPPORTING MEDIATION

In Mohd. Mushtaq Ahmad v. State[1]  the wife filed a divorce petition along with an FIR against the husband beneath Section 498A of IPC when disputes arose between the couple after birth of a female baby . The province judicature directed the parties to mediation beneath Section 89 of CPC. The matter was settled amicably through mediation when that the wife determined to quash the FIR. 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.

In Gurudath K. v. State of Karnataka[2]  the court expressed that even if the offences are non-compoundable and  if they relate to marital status disputes, the Courts are  happy that the parties have settled identical amicably and Section 320 of  Cr.P.C wouldn’t be a bar to the exercise of power of quashing of FIR or criminal criticism in respect of such offences. Thus, the court allowed for the offences to be combined on returning to the conclusion that the spouse was underneath no threat or coercion for identical.

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd[3]  the Supreme Court processed that even once a case is attributed or assigned  to  mediation the court retains its management and jurisdiction over the matter and also the mediation settlement can need to be placed before the court for recording the settlement and disposal. This shows the Court’s efforts in making an attempt to avoid mediation to be meted out in every single way.

VI. CONCLUSION

Therefore it’s concluded  that different dispute resolution mechanism is a lot more advantageous than the court redressal mechanism if enforced with robust body established, virtuoso mediators and trained judges, with effective case management, Hence, it may be precisely concluded that in step with analysis  the choice dispute resolution mechanism is seen to be a lot of advantageous than court redressal mechanism since, it’s more cost-effective and fewer time intense that in consequence, it can scale back the pendency of cases within the courts and offers a lot of satisfying and acceptable solutions to the parties in disputes because it is settled with active participation and convenience of the parties. Variety of cases resolved through ADR mechanism are rising because of the legislative recognition given to ADR in section 89 of the code of civil procedure, ADR mechanism is conducted seriously and cautiously. Since, there’s rise in resolution of cases through ADR method, it’s welcome by majority of judges, lawyers and litigants. However it’ll take an affordable time to be stock-still within the existing adversarial system because the folks square measure a lot of liable to previous system. Although, with correct co-operation and co-ordination between stakeholders of bar on a daily basis  there’ll be a well settled system for implementation of different dispute resolution mechanism. In epitome for correct implementation of ADR mechanism Central and authorities, legislators similarly as judiciary has got to take concrete steps which are able to widen the scope for access to justice to all or any.

VII. SUGGESTIONS

India has been experimenting with and discussing non-judicial routes like mediation, conciliation, arbitration and negotiation still as easier judicial alternatives to form justice a poor man’s pragmatic hope. The rising pendency of cases within the courts might cause injustice to the commoner. To attain the goal of justice to all or any through ADR method, the research worker would love to suggest/recommend as follows:

  1. The initial and foremost necessary step needed to be taken by government is to unfold awareness regarding the method of ADR mechanism by creation of web site, publication through media, native cable tv, radio, pamphlets, brochures’ and newspapers etc. or by holding seminars, workshops, symposiums etc.
  2. Existing strength of judicial officers isn’t able to handle their own work so; they’re going to hardly get time for effective implementation of ADR mechanism. So, new judges ought to be appointed to reduce this problem.
  3. A vicinity of legal practitioners ought to become ADR practitioners. For the aim, it’s necessary for lawyers to impart applicable coaching and participate in role-plays or mock practices. Totally different classes of mediators and conciliators ought to be created thus on change them to figure in their various fields of specialization like family, company etc.
  4. Government ought to take effective measures to allot ample funds to meet the essential necessities for the correct implementation of ADR mechanism, like correct infrastructure, higher-up authority, manpower, panel of trained mediators, conciliators, arbitrators etc.
  5. As most cases unfinished within the courts square measure the litigations by or against the government, a special defender or treater should be appointed to unravel the cases by or against the government matters.

 

VIII. REFERENCES-

  1. Justice ManjuGoel, Successful mediation in Matrimonial Disputes – Part I, Delhi Mediation Centre http://delhimediationcentre.gov.in/articles.htm#partI
  2. Concept and Processes of Mediation, Mediation and Conciliation Project Committee, Supreme Court of India http://mediationbhc.gov.in/PDF/concept_and_process.pdf
  3. Justice Dr. M. K.  Sharma, Conciliation and Mediation, Delhi Mediation Centre http://delhimediationcentre.gov.in/articles.htm#partI
  4. M.Khanwilkar (2012) Handbook on mediation 2012, High Court of Bombay 1862- 2012, p.n.1.
  5. Padmavathi (August 1990) Violence in the Family: A Criminological View, Legal News and Views, p.n. 240
  6. Avatar Singh(2007) Arbitration and Conciliation Act,1996, Law of Arbitration and Conciliation, Eastern Book Company, Lucknow,Eight Edition. p.n.4
  7. Avatar Singh (2007), Alternative Dispute Redressal, Law of Arbitration and Conciliation, Eastern Book Company, Lucknow, Eight Edition. p.n.476
  8. Diva verma (Feb2013) Mediation in matrimonial disputes:An analysis, Law profile,Vol 4, Issue 2, p.n.9-10

[1]Mohd. Mushtaq Ahmad v. State,(2015) 3 AIR Kant R 363.

[2]GurudathK. v. State of Karnataka, Criminal Petition No. 7258 of 2014, order dated 20-11-2014.

[3]Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd , (2010) 8 SCC 24

Cite as: Surbhi Soni and Ruchika Sharma, Mediation in Matrimonial Disputes – Indian Perspective, 1 Int’l J. of Legal Sci. and Inno. 2 (2019)

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