Discourage litigation, persuade your neighbours to compromise whenever you can.
Point out to them how the normal winner is often a loser in fees, expenses, cost
There are two ways of solving dispute resolution, one of them is adjudication by
a public forum and the other one is adjudication by a private forum. Mediation
comes in the second form of dispute resolution. Mediation is to offer the
public, a speedy and satisfactory alternative dispute resolution in certain
types of civil cases. There are two fold benefits of mediation. First, the
parties are able to find an amicable solution by the negotiated settlement to
Second, the courts will have more space to deal with cases which require their
adjudication. The pendency of cases with courts will reduce. Mediation is not
meant to dilute the role of courts instead it is there to complement it.
Mediation, Conciliation and Lok Adalats are all non-adjudicatory dispute
resolution processes, where a neutral third party provides assistance to the
parties to reach a satisfactory settlement. In all these processes, the third
party listens to both the sides, ascertains the facts and circumstances,
identifies the cause for the conflict and facilitates the parties.
In mediation, the reference is by the court to the mediation centre or a
mediator, either with or without the consent of the parties. In a mediation, the
court retains control over the entire process and consequently whatever
settlement is arrived at, is placed before the court and the court makes an
order or decree in terms of the settlement.
In the book ADR
Principles and Practice
Henry J. Brown and Arthur L. Mariot (1997, 2nd Ed. Sweet & Maxwell, Lord on
Chapter 7, p 127), the authors say that mediation is a facilitative process in
which disputing parties engage the assistance of an impartial third party, the
mediator, who helps them to try to arrive at an agreed resolution of their
dispute. The mediator has no authority to make any decisions that are binding on
them, but uses certain procedures, techniques and skills to help them to
negotiate an agreed resolution of their dispute without adjudication.
Role of Mediation In Preventing Divorce Cases
�Legally speaking, marriage is a contract made in conjunction with the law,
where a free man and a free woman reciprocally engage to live with each other
during their joint lives, in the union which ought to exist between husband and
wife. By the terms, freeman and freewoman in this definition are meant, not only
that they are free and not slaves, but also that they are clear of all bars to a
It Is The Spirit And Not The Form Of Law That Keeps The Justice Alive.
LJ Earl Warren
According to Blacks Law Dictionary, a divorce is defined as, the legal
dissolution of a marriage by a court. The objective of mediation in divorce
cases is to assist the parties in reaching a mutually acceptable resolution of
the issues in dispute. It is effective when emotions are getting in the way of
resolution. An effective mediator will hear the parties and help them
communicate with each other in a non-destructive manner.
Mediation will not be effective if one of the parties is not willing to
compromise or cooperate.
The concept of mediation centres is rapidly gaining popularity with a success
rate of 63%. According to recent court figures, more than 1,36,000 marriages
take place every year while some 8,000-9,000 divorce cases are filed each year.
In fact, an average of 10 cases is filed per day in just one court.
Section 89 of Civil Procedure Court (CPC)
Section 89 of the Code of Civil Procedure, gives the Court the power to refer
the dispute for settlement or conciliation outside the court with a purpose of
an amicable, peaceful and mutual settlement between parties. The Law Commission
in its 129th Report advocated the need for amicable settlement of disputes
between parties and the Malimath Committee recommended to make it mandatory for
courts to refer disputes, after their issues having been framed by courts, for
resolution through alternate means rather than litigation/trials. The alternate
forums accorded under Section 89 are economically more viable as there are
relatively lesser amount of transaction costs and thus, there is a need to make
people aware about the same.
Hindu Marriage Act, 1955
Under Shastric Hindu law, wedlock was unbreakable and the marital bond existed
even after the death of a party to marriage. Divorce was known only as a matter
of exception in certain tribes and communities which were regarded uncivilized
by the Hindu elite. The courts recognized it in these communities due to the
binding force of custom. But the general Hindu law did not recognize it. Divorce
puts the marriage to an end, and the parties revert back to their unmarried
status and are once again free to marry.
Section 13 of the Hindu Marriage Act, 1955 has introduced a revolutionary
amendment to the shastric Hindu law.
It provides for the dissolution of marriage. Under the Hindu law, divorce does
not take place unless it has been granted by a court. The provisions relating to
divorce is contained in Sec 13 of Hindu Marriage Act, 1955.The Act recognizes
two theories of Divorce: the fault theory and divorce by mutual consent. Under
the fault theory, marriage can be dissolved only when either party to the
marriage had committed a matrimonial offence.
Under this theory it is necessary to have a guilty and an innocent party and
only innocent party can seek the remedy of divorce. However the most striking
feature and drawback is that if both parties have been at fault, there is no
remedy available. Another theory of divorce is that of mutual consent. The
underlying issue is that since two persons can marry by their free will, they
should also be allowed to move out of their relationship of their own free will.
However critics of this theory say that this approach will promote immorality as
it will lead to rapid divorces and parties would dissolve their marriage even if
there were slight difference of opinion.
Divorce by mutual consent is not new to Hindus and it was recognized through
legislation and customs by some states and communities189. But there was no
provision of divorce by mutual consent under Hindu Marriage Act, 1955. Section
13-B was added by the Marriage Laws (Amendment) Act, 1976 where the parties can
now obtain divorce by mutual consent. This provision is retrospective as well as
prospective. Hence, parties to a marriage whether solemnized before or after
that Amending Act can avail themselves of this provision. If both the parties
have agreed to dissolve their marriage, they may do so in a more civilized and
cultured way than by quarrelling between themselves in a court.
In Section 23 (2) and 23 (3) of the Hindu Marriage Act, 1955, the Court is
directed to try reconciliation between the divorce-seeking parties, depending
upon the nature and circumstance of a case. As was done in the case ASHOK VS.
MEENABAI but the same was not successful.
By order dated 15/4/2019 this court has relegated the applicant and respondent
for mediation. During the course of mediation, the respondent/wife gave an offer
for withdrawal of 50-50% amount from the joint account and settle the dispute,
but the applicant did not agree and the mediation was failed.
There are chances where mediation does not work but there are many cases where
mediation serves as the best method for dispute resolution. As was in the case
NIMITA NEMA V. SANDEEP NEMA in which they voluntarily agreed for settlement.
Apparently, the parties have arrived at an amicable settlement and agreed that
on the respondent paying a sum of Rs. 14,50,000/- (fourteen lac and fifty
thousand) to the appellant, the appeal shall not be pressed by the appellant and
that the same may be dismissed affirming the decree of divorce.
This shows that parties made this settlement on its own and this is a point of
difference between conciliation and mediation. In conciliation the third party
which has come to solve the issue decides what settlement has to be done whereas
in mediation both the parties to the dispute decide.
Why Mediation Is Better Than Tradition Litigation Methods In Family Matters
Mediation is better than tradition litigation methods due to various reasons
which are as follows:
- Quicker- Mediation takes very few days
to finish the proceedings as compared to other methods. It takes minimum 21
days and maximum 4 months whereas lawsuits take months or years.
- Less Expensive- Mediation is less
expensive than typical lawsuits. The first two hearings of it are free and
even from the third hearing very nominal costs are taken. A mediator costs
significantly less than employing a lawyer.
Less Formal- The informality of mediation allows the parties to be more engaged
than they would be in a court-driven process with an abundance of rules and
procedures designed to separate the parties. Accordingly, since the mediator
deals directly with the parties, the mediator can focus the attention on the
parties, upon their needs and interests rather than on their positions.
Confidential- Mediation is typically private as compared to court cases where
everything is public. This reason alone is a great reason for using mediation
for dispute resolution rather than other methods as nobody wishes to reveal its
Preserves Relationships-One of the benefit of mediation is that it helps us to
preserve relationships, business and personal things that are likely to be
destroyed through years of litigation. This is because it is a collaborative
rather than adversarial process.
Control- In mediation, unlike in lawsuits, the parties are in control which
means that the parties have a much greater say in negotiation and control over
Better Results- Parties generally report a better outcome as a result of
mediation than they do in court cases because there is no winner or loser and
the settlement is mutually agreed upon. The parties are therefore more satisfied
Thus mediation is considered better than any other method in divorce cases as
people usually wish to settle the dispute rather than being separated for life
because of the social stigma which hangs as a sword upon them.
Visit To The Mediation Centre In The Family Court of Jabalpur
The experience in the mediation centre was very helpful as talking personally to
the lawyers, judges and even the litigants was very effective in knowing the
practical issues. Two Questionnaires were prepared, one for the lawyers and
judges and the other one for litigants.
Questions To Lawyers And Judges
- What is the nature of cases which come
for mediation mostly
- What is the age group which comes for
- Are people who come for mediation both
employed or unemployed?
- At what stage do they refer the case for
- How is the response of the litigants
Mostly the cases related to Dowry, Domestic violence, Extra marital affairs,
Desertion and Cruelty were noted down. These are the main issues for which
divorce cases are registered.
Mainly people between the age group 25-35 come for issues like extra marital
affairs. And mediation can be said to be prevalent in between 25-50 age group.
No basically people who come have on the member who is employed. Mediation is
commonly seen uneducated people as they have a sword of social stigma stuck over
them. Educated people also come there where both are members are working and
thus because of less communication or miscommunication they have disputes.
In the beginning only or when they are at a stage where a common decision
through the communication between the parties can be achieved, the case is been
referred for mediation.
The litigants usually happily agree for giving a try to mediation. But the
situation is not same in all the cases rather there are people who have come
with the decision of having divorce and they dont even wish to solve the issue
The above discussion with the judges and lawyers reflected that more and more
people are going for mediation to solve their issue and are actually happy with
it. The inconvenience and delay which is being caused in court cases is not
preferred by people due to their busy schedule. And this is a positive effect
which is seen now-a-days.
Questions To Litigants
- Are you a plaintiff or a defendant?
- How would you rate your first impression
of the mediator handling your case?
- How clear was the explanation of the
mediation process offered by the mediators?
- Did the mediation process addressed the
main issues of your dispute?
- How satisfied were you with the overall
I had a conversation with both the parties involved in a dispute. Their matter
was brought into the court because of the issue of extra marital affair for
which the wife accused the husband. They were advised for mediation at the stage
when all of their doubts were solved.
The wife named Mrs. Sangeeta Soni said that at first she was not comfortable in
mediation but later on after the first hearing she thought that the issue will
be solved more effectively as she had the chance of representing her own case.
On the other hand the husband named Mr. Ratanlal Soni was happy with the process
from the beginning only and had no issue over it.
The process of mediation was explained clearly by their respective lawyers
firstly and then even the mediator explained them.
Yes the issue was properly addressed and both the parties were heard together
also and then separately too for solving their grievances.
The case has not been completed yet but until now both of them were satisfied
with the process going on.
Part of Awareness Programme
Indian Mediation Week, is a pan-India mediation awareness initiative, being
organized with the support of Ministry of Law and Justice, Government of India
and Supreme Court Mediation and Conciliation Project Committee (MCPC).
I am working as a volunteer in this programme and my work is to conduct
mediation drives creating awareness about mediation among the general public
especially the poor oe uneducated people. What we do is we give a pamphlet to
the person and then inform him about the benefits of mediation. There are people
who are interested in telling their cases so what we do is we take their number
and further transfer the information to the concerned authority. They then
contact these people after a period of 15-20 days and the cases are been
discussed and solved.
The cases which I have collected so far are basically property dispute cases and
cheque bounce cases. There are some cases of family dispute also relating to
divorce and cruelity. One such case of divorce which I came across was of a
street vendor who was very much exhausted with his wife who left him and went to
her fathers house with all the gold jewellery present in the house and it has
been 7 months since then and nothing has been done. The person wanted to resolve
the issue but the other party,i.e. the wife was not in support of it. We advised
him to go for mediation and he even asked us to forward his case with a mark of
urgency. We have forwarded the case and the further process will be done soon.
This shows that people are in dire need of having an alternate method of solving
their disputes but they are not aware of the methods already present in our
country. This initiative is a great step towards creating awareness about the
same and every person who is aware of mediation should circulate the information
so that the people in need are helped by it.
When a couple files for divorce, disputes often arise over the division of
marital property, as well as care and custody of the children. In many cases,
each spouse hires an attorney to help them out in court. An alternative option
that can save both parties from a great deal of time and money is divorce
mediation. Such mediation takes place in the same manner as other civil
mediation where the mediator helps the parties to arrive at a solution based on
their own ideas of what is fair rather than leaving the decisions up to a judge.
In addition to saving time and money, mediation often helps the couple improve
communication. Mediation is confidential, and gives each spouse a greater
feeling of control over the outcome of their case as compared to litigation.
This project has taught me very different and important things of which I was
not aware before. The visit made it even more pragmatic and helpful to know the
process of mediation. There are many advantages of mediation and even making
people aware made it more interesting. But it was a saddening part that mostly
people were not aware about it but it was great that they were interesting in
knowing about it and even using it.
It has been beautifully said by Salman Khurshid, Former law minister and senior
advocate that Very impressed by your foresight, endeavour and commitment to
life without conflict. Any effort that is taken up by young people, even before
they become lawyers, while they are preparing to become lawyers, to
attitudinally work towards dispute resolution through mediation, through
alternative systems, needs to be welcomed and those who are participating, needs
to be welcomed and those who are participating in it, I believe ,are angles of
service to humanity. Thus each one of us should try to make people aware about
this method so that the deprived people can take the best out of it.
More research is needed on the conditions under which people will enter
negotiation and mediation and the conditions under which they will take other
routes when faced with a conflict. Even in family matters other methods can be
used but mediation as per my view will be best suited for it.
- 2019 SCC OnLine MP 1893 Para 7
- 2017 SCC OnLine MP 766 Para 2