The Role of Mediation in Resolving Family Disputes

Overview of Conciliation and Mediation

The preservation of peace and relationships is the ultimate purpose while settling family disagreements through mediation. Conciliation and mediation are ancient institutions with profound roots in social traditions of several ancient civilizations, especially in Asian culture. In India, family disagreements were usually settled by family elders who served as conciliators or mediators.

The fundamental goal of Alternative Dispute Resolution (ADR) is to settle disputes amicably. Mediation is one such process that enables parties to sit down together, concentrate, and decide what the parties to the dispute actually want, or what they could claim for under the law. The Black’s Law Dictionary describes mediation as “a private, informal dispute resolution process in which a neutral third party, the mediator, helps disputing parties to reach an agreement”.

Mediation in Family Disputes

Family dispute mediation is a method in which an unbiased third party, the mediator, supports the resolution of family disagreements by encouraging participants’ voluntary agreement. The family mediator facilitates communication, promotes understanding, and directs members’ attention to their shared interests. The family mediator assists the parties in exploring choices, making decisions, and reaching their own agreements. As a result, the family mediator supports participants in better understanding their own needs and interests, as well as the needs and interests of others.

First and foremost, mediation encourages efficient family communication. As an impartial third party, the mediator facilitates discussions and makes sure that everyone has the chance to voice their needs, concerns, and opinions. This open communication encourages comprehension, empathy, and the capacity for finding common ground.

The potential for original and adaptable solutions is yet another key benefit of mediation. Mediation enables families to come up with solutions that will benefit both parties to the dispute, in contrast to traditional litigation, which frequently results in win-lose outcomes. This strategy enables customized agreements that take into account the special dynamics and circumstances of each family, increasing satisfaction and adherence to the final decisions.

Mediation over litigation for family disputes

In addition, mediation is frequently a more economical and successful choice as compared to litigation. While mediation often needs fewer sessions and can be planned at the convenience of the parties involved, court processes can be drawn out, expensive, and emotionally taxing. Families can devote their resources to reconstructing their lives and concentrating on their well-being by curtailing the time and financial load.

Additionally, mediation addresses the pressing need for faster and cost-effective dispute resolution mechanisms in India. The Indian judicial system is burdened with a significant backlog of cases, resulting in prolonged litigation processes and mounting legal expenses. Mediation offers a time-efficient and cost-effective alternative, allowing families to resolve their disputes promptly and at a fraction of the cost compared to court proceedings.

Importantly, mediation equips families with the power to continue directing their own future. The judge in a courtroom eventually decides the outcome of a case, giving the parties little say in the conclusion. As opposed to litigation, mediation enables families to actively shape their agreements, fostering a sense of ownership and dedication to the agreements made.

Mediation also encourages the preservation of relationships, particularly in situations where ongoing co-parenting obligations are involved. Parents can enhance their communication skills, their comprehension of one another’s viewpoints, and their ability to work together for their children’s welfare through the mediation process. Mediation contributes to building a stronger basis for future interactions and relationships within the family by decreasing conflict and encouraging collaboration.

Legislative framework for mediation of family disputes

There are mentions to mediation/conciliation in family conflict resolution in the Family Courts Act of 1984, the Civil Procedure Code, the Hindu Marriage Act, and the Legal Services Authorities Act of 1987 in India.

The whole framework of family courts is built on the twin pillars of counseling and conciliation. Counselors are expected to not only give therapy but also to facilitate reconciliation and amicable resolution wherever possible. Section 9 (1) of the Family Courts Act provides that “In every suit or proceeding, endeavor shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding”. Meanwhile, section 9(2) of the Act states that “If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.”

Section 23 (2) of the Hindu Marriage Act, 1955, which contains similar provisions, states that “It shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties”.

Therefore, the gist of Section 9 of Family Courts Act, 1984 and Section 23 (2) of the Hindu Marriage Act, 1955 is that the family courts must strive in the first instance, where it is possible to do so, with respect to the nature and circumstances of the case, to assist and persuade the parties to arrive at a settlement, if there appears to be a likelihood of a resolution between the parties. However, these regulations do not make mediation/conciliation mandatory.

Final Gist

In conclusion, mediation offers numerous benefits when it comes to resolving family law disputes. It provides a constructive and supportive environment where families can engage in open and honest communication, leading to effective problem-solving and sustainable agreements. Embracing mediation as a preferred method of dispute resolution in India can pave the way for a more harmonious, just, and equitable society, where families can find mutually agreeable solutions while preserving their relationships and fostering societal cohesion.