The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
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2 Basic Process and Need for Divorce Mediation
3 Advantages and Disadvantages of Mediation in Divorce Proceedings3.1 Unbinding Nature
Mediation In Divorce Proceedings -Marital mediation is intended to deal with the practical problems of a settlement concerning the division of marital property money, spousal maintenance, child support, and children’s custodial arrangements. Emotional problems are not a priority. A simple, comprehensive structure and scope of reference are selected when a couple decides to seek settlement by mediation under the Marital Mediation Rules.[1] Physical facilities, orientation, a neutral communications center, a panel of qualified mediators, a panel of unbiased advisory attorneys, escrow deposit and accounting services, interpretation of the rules of marital mediation, selection of an impartial advisory attorney-mediator, and assessment of the work conducted by marital mediators and advisory
attorneys become key to carry out the divorce mediation process.[2]
In India, section 89 of the Code of Civil Procedure attempts to highlight the need for Alternate Dispute Resolution in order to minimize costs, reduce the burden of courts and coordinate an amicable, peaceful, and mutual settlement.[3] MR Krishna Murthi v. New India Assurance Co. Ltd. emphasized the need for legislation for mediation and in furtherance set up a committee to draft the same in order to help in conferring legal sanctity to the process of mediation in India.[4]
The institution of marriage is not merely a contract that ends post the dispute is settled. It involves personal liabilities, motivation, social compulsions, child custody, and so on. Therefore, Divorce needs to be distinguished from other civil procedures. The process of litigation based on precedents and legislature is devoid of any sympathetic attitude towards the parties.[5] Moreover, the binding court decision often leaves the parties dissatisfied resulting in appeals, review petitions, and curative petitions, hence prolonging the final decision and furthering animosity between the divorced couples in order to achieve a favorable outcome.[6] This calls for the need for mediation in divorce proceedings in India. A sample study concludes that more than 50 percent of the cases falling under mediation come under matrimonial mediation.[7]
Divorce Mediation is a voluntary and an informal dispute settlement involving an impartial third party, a mediator, for the purpose of identifying, discussing and ultimately resolving marital disputes. Each side raises their respective concerns and the mediator works with both the parties in order to help resolve the conflict and reach a settlement. Guiding the estranged parties through the whole divorce process is the primary job of the mediator.[8] It is different from litigation and takes an outside-court approach with an assumption of cooperation rather than competition.[9] There is a single professional involved and the final power to reach
a conclusion is vested in the parties concerned itself.
Reconciliation is not the goal of mediation; instead, the main aim of the process is to ensure a fair agreement, limiting the exploration of emotional issues to that aim. Mediation further beats the ‘best interest’ standard and somewhat reduces the direct involvement of children when it comes to being involved in the interpersonal conflict of their parents, proving to eradicate a detrimental stressor. The ability of the process to circumvent the adversarial and arbitrary way courts adjudicate
a divorce proceeding reduces the hostile and disruptive impact on families.[10] At the end of the process, the mediator puts forth the most viable solution for the parties to consider. However, it is only for their benefit and thus not binding.
Mediation in divorce proceedings comes with its set of advantages. Both the parties are granted the liberty and the platform to put forth their respective concerns in front of the mediator, an impartial and a neutral person who assists each of the parties in the requisite matters. Both the parties are in a position to manage the outcome and make certain that the end result is much more closer to each of the party’s desired outcome as compared to a decision adjudicated by the courts. The approach is non-adversarial and hence fends off any hostility and
tensity that was otherwise bound to rise owing to the delicate and private nature of the scenario.
Though a mediator’s fee may be comparable to that of an attorney the overall time is considerably reduce to a matter of hours as compare to the time take for the case to move through standard legal channels, often taking months or years to resolve. Hence,mediation subsequently reduces the overall cost required for the whole process. Moreover, mediation allows a couple to avoid the hassle of entering into litigation. In dealing with the private institution of marriage, confidentiality plays a key role under mediation as compared to
the otherwise public nature of court hearings to uphold the necessary privacy.
However, the unbinding nature of the mediation process can lead to certain disadvantages. In the case that the opposite spouse refuses to coordinate, one cannot force them into agreeing to the process of divorce mediation. Even once they’ve agreed to mediation, no one can compel them to reach a solution. The mediation process relies on active participation from the parties involved in both the fact-finding and coming up with the solutions. However, this may not even be possible in commonplace circumstances wherein only one spouse may have complete knowledge and control over their financial resources, inevitably that party will automatically hold a dominant position over the other. Such active participation from both parties at equal footing cannot be possible here. Research shows women in such a situation feel that though it promises a positive effect on children, they could have won
more had it been for litigation and not mediation.[11]
Moreover, in ‘special’ circumstances where one needs to mediate in matters involving domestic abuse or assault, there exists an imbalance of power between the perpetrator and the victim which cannot be resolved in the course of the mediation process.[12] The dynamic in such cases involves power, fear and coercion, making it impossible tome this basic requirement of the process. This further raises the feminist argument of domestication of the divorce process wherein women are make to resolve issues with her abusive husband within
the privacy of four walls with only a non-binding nature of law to protect her.[13]
There is a lack of awareness amongst the estranged parties about the process of mediation which could be a result of lawyers not advising
their clients to opt for the same due to their personal monetary interests. Counsels for disputing parties, religious hurdles and the traditional erroneous understanding of mediation also hinder the process.[14] Matrimonial or family lawyers pose a major disadvantage to Non-lawyer mediators.[15]
Mediation in DivorceProceedings proceeding potentially alleviates stress in terms of time, confidentiality and privacy. However, intensive evaluation needs to be performed in the execution of the process in order to better deal with the many concerns posed by de-legalising the divorce process. Especially in a country like India, where the courts take months or years to finally reach a conclusion, and in furtherance to this backlog when the settlement is also prolonged due to egoistical, sentimental, religious and cultural reasons, the need of mediation becomes imperative. Ensuring a normal harmony while addressing issues through mediation will aim to keep not the couple itself but the family intact. The apex court has accepted mediation
as a method of alternate dispute resolution and the higher judiciary has directed the commencement of work
to make mediation a check in pre-litigation.[16]
[1] O. J Coogler, Structured mediation in divorce settlement (1979).
[2] Ibid.
[3] Code of Civil Procedure 1908 § 89.
[4] MR Krishna Murthi v. New India Assurance Co. Ltd.2019 SCC OnLine SC 315.
[5] Nivedita Nair, Scope of Mediation in Matrimonial Disputes in India, 8 NUALS L.J. 154 (2014).
[6] Ibid.
[7] Nivedita Nair, Scope of Mediation in Matrimonial Disputes in India, 8 NUALS L.J. 154 (2014).
[8] Ibid.
[9] Robert E. Emery, Melissa M. Wyer, Divorce Mediation 472-480 (1987).
[10] Ibid.
[11]Robert E. Emery, Melissa M. Wyer, Divorce Mediation 472-480 (1987).
[12]Jane C.Murphy, Robert Rubinson, Domestic Violence andMediation: Responding to the Challengesof CraftingEffective Screens, Family Law Quarterly, Volume 39 53-82 (2005).
[13]Nivedita Nair, Scope of Mediation in Matrimonial Disputes in India, 8 NUALS L.J. 154 (2014).
[14] Nivedita Nair, Scope of Mediation in Matrimonial Disputes in India, 8 NUALS L.J. 154 (2014).
[15] Ibid.
[16] Supra note 14.
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