How mediation works in divorce and family cases in india?

Mediation Introduction.

Family law disputes are litigated in court where disputes arise and the court may recommend mediation or the plaintiff or defendant may take the case to mediation.

Mediation This can also be said same as Reconciliation. The arbitrator who conducts the mediation can be called mediator. Mediation has become a good option in family law disputes. Conflicts that arise in a family are very important and should be dealt with patiently and a solution can be reached where both parties can benefit. It gives a quicker solution than a delayed judgment in court.

A situation arose where my client had to file a divorce and alimony case. The court recommended mediation of the case. They are not sure how mediation will work in court. But later the dispute in the case was settled This process was very useful for them.

which family issues Mediation is recommended?

There are different types of problems in a family, from a large joint family to a small single family these problems are different for every family. Various problems occurring in the family can be listed as follows:

1. Divorce and separation issues.

Divorce-related issues are one of the main reasons for fighting in a family. A couple may decide to separate under various circumstances like work related stress, stress due to in-laws, child related issues, financial instability etc. In this way various divorce and separation problems may arise in the family.

2. Inheritance property issues.

Who acquires the property? This question is the root cause of problems related to inheritance and division of property. Fights between siblings over property and business or children create conflicts with parents. This also happens when the family business is taken care of by siblings. Conflicts of opinion between them become a common issue. Inherited property problems may also arise in a family.

3. Post-divorce issues.

There are still some things that husband and wife should take care of after divorce. Be it children’s safety, education, financial matters etc. these are the things that parents need to take care of. It can also become a problematic matter in the family when perhaps left unattended.

4. Parenting.

Child rearing is a major cause of family disputes and problems due to not knowing how to raise a child. If the husband or wife does not care properly, there is a problem between them and this problem leads to divorce. Both husband and wife as parents have a role to play in bringing up children

5. Extended family concerns.

A large joint family in which different people have different opinions and these small differences sometimes lead to a big fight, which is difficult to resolve.

6. Eldercare.

Conflicts often arise between co-borns over who takes care of the elders of the family. If one of the co-born takes care of his parents i.e. the elderly, perhaps if he has property, he will get it because of the fear that he will take care of it, there are more chances of problems among the siblings. Fighting with that sibling or brother is a valid reason to create a problem in the family.

Due to the various reasons that I have mentioned above, there are problems in the family. If cases are filed in the court due to these problems, this process of mediation is very necessary to get a decision quickly to end those cases so court is recommended to Mediation.

Is mediation a good solution to resolve family disputes?

There are many things that can cause conflict in a family. Conflicts occur between couples, between siblings, with parents, and over many other issues. There can be many reasons for conflict between couples, for example there may be different opinions while taking any decision, different jobs, different ambitions and at that time they are not able to give time to each other, children and home. Jobs can also be a cause of complications.

In the family, women have to take care of all the household chores even if they are working women. In our country as compared to other countries, the involvement of families is more, which leads to problems between couples.

Property disputes may arise between siblings and parents. So in this situation, mediation becomes a good idea to resolve these issues.

Mediation in domestic violence cases.

The procedure for court-recommended mediation is provided under Section 89 of the Code of Civil Procedure. So, basically, it is used for civil matters, so how domestic violence prescribed under Section 498-A of the IPC for mediation. Domestic violence is a non-compoundable offense under Section 320 of CrPC, so how can Indian courts mediate it again and again? In 2013, the Supreme Court empowered courts to refer cases under Section 498-A of the IPC to mediation.

For example.

In the case of Muhammad. Mohd. Mushtaq Ahmad v. State, Divorce case against husband and wife and FIR under Sec. IPC 498-A, when disputes arise between them after the birth of a female child. The Karnataka High Court referred the matter to mediation and all was settled amicably. The wife decided to quash the FIR filed by her and allowed the court to exercise its inherent powers to meet the end of justice.

There are some disadvantages to mediation in domestic violence cases.

• The wrongdoer easily escapes punishment and is free to walk in society without being truly punished for his actions.
• When a crime is committed, the perpetrator should be punished, which will serve as a deterrent to others and reduce crime in society.

Importance of mediation in family disputes.

In earlier times in our society there was a tendency to settle disputes between family members by sitting together and talking. At the village level, decisions are taken and disputes settled in panchayats after both sides are heard. In other words, this process of mediation works in the courts just like how the panchayat works. The process of mediation plays the same role where the members of a disputing family try to resolve their grievances through discussion instead of going to court. In family relationships, peace and harmony among family members is very important.

By encouraging communication, family mediation mediators try to help people reach a solution that both parties agree to. The family law system encourages mediation, which can be done in a variety of ways, such as using a family member or friend to assist, an informal public meeting or using the special mediation process covered under the Family Law Act, 1975, where a family dispute resolution practitioner helps people resolve their dispute and he or she meets with any party. Not directly related.

The Family Courts Act, 1984 giving special status to the Lok Adalat, the Civil Procedure Code, the Hindu Marriage Act and the Legal Services Authority Act, 1987 contain references to Mediation/Conciliation/Mediation for resolution of family disputes.

The role of the lawyer in mediation.

Most of the people are not likely to know about this mediation center or mediation process or its procedures and therefore need the guidance of a lawyer.

A lawyer clarifies this legal process by explaining to his client about this mediation and by telling him the terms and conditions.

Is it a simple solution to settle the case through mediation rather than adjudication, or are there complications in this? Mediation is between two parties, and both parties should benefit from it. Guidance is provided but the lawyer is not allowed to argue directly with the arbitrator or urge his client to make a decision that suits his client, rather he may seek legal assistance from a lawyer to prevent his client from making wrong decisions.

An important task of the lawyer is to prepare the necessary documents during the procedure. After the mediation process is over it can be successful or unsuccessful. If the results are not favorable, the person has to start the case back from the place referred to mediation, which requires a lawyer.

In some cases written agreements are signed in this mediation or conciliation mode, and if a client does not need the legal advice and guidance of a lawyer at the time of signing, there is a chance that they may have a false fear of making a wrong decision or signing a wrong contract with the lawyer. Ask to inspect and then sign. The lawyer also ensures that the terms of the arbitration settlement are duly executed.

The role of the mediator in mediation.

When court cases are sent for mediation, the person who interrogates both the parties and brings a correct decision is called the mediator.

The main task of the mediator is to help the parties reach a solution to the case by communicating with each other. The mediator’s job is to consider the common issues of the case and present them to both parties and encourage them to work forward to find a solution to the problem.

During the mediation process of the case, the mediator should ensure that the parties are asking the right questions and the mediator should be impartial to both the parties.

It is very important that the referee is impartial. If there is any doubt in the mind of the arbitrator that he cannot be impartial, he must step aside and appoint a new arbitrator in his place.

The mediator shall maintain the confidentiality of the case and shall not divulge any details related to the mediation process to anyone.

Steps followed during mediation?

There are certain steps involved when it comes to the mediation process in a family law dispute. They are as follows:

Preparation.

Before the mediation process begins, the mediator may meet the parties and guide them through the steps involved in the mediation process. He clarifies doubts and answers relevant questions. This conversation doesn’t have to be face-to-face, it can be done over the phone.

Introduction.

First, there will be opening statements provided by the mediator and he will clarify his role as a mediator. The Mediation Arbitrator will ask whether both parties agree to the process or not. If the parties agree, the mediation process will take place as mentioned in the steps. If the parties refuse to refer the matter to arbitration, certain costs sanctions may also be imposed by the court for ignoring the process.

Statement of the problem.

The mediator gives the parties an opportunity to present their issues in their opening statements. This is because both parties and the mediator should have a better understanding of the situation at the end of these statements.

Collective discussion.

The mediator will discuss the issues of both parties and ask them appropriate questions to get more information. Through this discussion he can also figure out what problems need to be solved first.

Personal discussion.

After a joint discussion of the issues, each party is given an opportunity to discuss it privately with the mediator and, if they wish, with their attorneys. This is an important step in preparing for negotiations.

negotiation.

The parties negotiate until they reach a solution that is acceptable to both parties. The mediator offers a solution that protects the interests of both parties. If negotiations fail, the case will be referred to court.

Agreement.

This is prepared as a contract if the negotiation ends and a settlement is reached. Once the terms of the contract are determined, the parties reconvene. The mediator will confirm the terms of settlement orally and then they will be written and signed by the parties.

The settlement has a conditional structure and then the settlement is enforceable in court. The mediator gives a final report to the court concerned thanking the parties for their cooperation throughout the process.

Advantages of mediation.

Things are handled smoothly so as not to affect interpersonal relationships.
Provides speedy justice, which reduces the burden on the courts.

It is flexible and gives the parties the right to decide whether to accept or reject the outcome of the hearing.

It saves family relations and children of the family from emotional problems they may face due to lengthy court cases. Also, it is definitely a good idea in cases where parents need to stay in touch even after divorce because of their child.

It maintains privacy and confidentiality. It also saves them costs as the parties have more control over the process than in court hearings.

When the matter is family related, it becomes ugly in court proceedings, while in mediation both parties can discuss and reach an agreement on settlement. This leads them to be certain about what decision to make.

In mediation, decisions can be made to suit the needs of the family, which is not the case in courts.

Lawyers get some benefits from mediation :

Lawyers who are already burdened with multiple hearings are relieved when the case is referred to mediation as it saves them time.

If the client is satisfied then the lawyer’s work is done and he successfully settles a case.

If the client is satisfied with the lawyer he can refer him to others and the lawyer can get more cases this way.

If the outcome of the arbitration is in favor of the client, the lawyer is well paid.

Conclusion.

The mediation process in a family law dispute is safe, informal and a way to protect the confidentiality of the parties. Mediation in family law disputes is becoming increasingly popular. The parties not only try to resolve their dispute through discussion but also seek the opinion of a mediator who is well versed in such cases.

It also ensures the satisfaction of the parties as the mediator listens to their views and tries to reach a mutually acceptable solution. They can get a second opinion from their lawyer. Also, if the parties are not satisfied with the results of the mediation, another door is always open for them to approach the court.