Role of Mediation in Matrimonial Disputes
A family lays the foundation for a society and therefore marriage, being one of the key relationships in a marriage forms the building block of a civilization. In the primitive times, the concept of marriage began as a sacrament. Marriage, as a sacrament necessarily implied a sacrosanct, eternal and indissoluble union. Among Hindus, marriage is a necessary samskar; every Hindu must marry. It was considered to be very significant specially for the purposes of procreation of off-springs. Therefore, if there is a breakdown of a marriage, it leads to grave repercussions on a family which further requires an adjustment of relations, essentially disrupting the peace and harmony of the family. Henceforth, our personal laws and the Courts encourage the parties involved in matrimonial disputes to go for reconciliation and settlement by an amicable agreement instead of an arduous litigation battle.
Now, mediation is a settlement process in which a mediator is appointed by either a person or the courts who helps both the parties to reach an amicable agreement that is responsive to their needs and agreed upon by both sides. According to Section 16 of the Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2006, the role of a mediator is to facilitate voluntary dispute resolution of parties and convey the view of one party to the other, help them in identifying issues, reducing misunderstandings, clarifying priorities and exploring areas of compromise.
There are several provisions in a plethora of legislation which expressly provide for conciliation and settlement before litigation.
Section 89 of the Code of Civil Procedure empowers the civil courts to refer matters to Alternate Dispute Resolution (ADR). However, as per the provisions of this section, consent of both the parties is a pre-requisite in order to refer the case for ADR and this is a crucial issue as it can be observed in most matrimonial disputes that one of the parties is a non-consenting party.
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.
Section 9 of the Family Courts Act, 1984 expressly lays down the duty of Family Courts to persuade the parties to come at a settlement.
Civil Procedure-Mediation Rules, 2003 have introduced mandatory mediation which empowers the Courts to send matters for mediation even when both parties have not consented to it, when there is a scope for reconciliation and the relationship between the parties is such that it needs to be preserved like matrimonial disputes.
From the aforesaid statutes, it can be observed that motive of Indian law is the preservation of marriage and therefore, courts are obliged to refer matters for reconciliation and settlement whenever there’s scope for settlement.
A divorce has a magnanimous impact on the lives of the parents and their children. The role of the mediator is to emphasize the mental agony and trauma that a child would have to face on account of the breakdown of marriage of his/her parents and advise the parents to analyze all the consequences of their decision. After the mediator has communicated all the possible repercussions to the parties, the mediator should ask them to take the final call.