Mediation in Divorce Proceedings in India

Mediation in Divorce Proceedings in India
By Archita Shukla
Introduction
With the new mediation act getting enacted, it is important to look at the changes that the act
brings in different spheres of law. The Mediation Act 2023 aims to promote and facilitate
mediation, as an alternate dispute resolution method to litigation, focusing on institutional
mediation, community mediation and online mediation. The act aims to facilitate contract,
commercial, family and community dispute resolution in a cost-effective manner and make
mediation an acceptable and accessible alternative to litigation. The act lays out who are the
parties to mediation, who can be a mediator, how community mediation will take place,
matters not fit for mediation, mediations agreements, power of the courts, mediation
proceedings, mediated settled agreements and formation of mediation council and many other
things pertinent to mediation proceedings.
What is mediation?
According to the act, “mediation” is consensual and confidential process aimed at resolving
disputes, where an unbiased or neutral third party, referred to as a mediator, facilitates
communication and negotiation between conflicting parties. The mediator’s job is not to
impose or suggest a settlement, but to guide the disputing parties in exploring potential
solutions, understanding differing perspectives, and collaboratively working towards a
resolution. The act also signifies that mediation and conciliation are synonymous terms,
aligning with the international standards, where both the terms are used interchangeably.1
What is divorce mediation?
Mediation in divorce proceedings is an important alternative dispute resolution mechanism,
offering a more amicable and efficient way for couples to resolve their differences. Divorce
mediation also involves a third party, known as a mediator who facilitates communication
between the divorcing parties, helping them reach mutually acceptable agreements without
resorting to lengthy adversarial court battles.
Here are some key aspects2

of why mediation is important for divorce proceedings:

1Mediation Act, 2023, § 3 (h), No. 32, Acts of Parliament, 2023 (India)
2 Tanisha Jain, Increasing Importance of Mediation, 2.3 JCLJ (2022), SCC Online Web Edition 1209, 5 2022

1. Voluntary Participation: Mediation is typically a voluntary process. Both parties must
agree to participate in the mediation sessions. It is not imposed upon the couple but is
chosen as a means of resolving disputes.
2. Role of Mediator: The mediator plays a role in facilitating communication with the
spouses. They are trained professionals who remain neutral throughout the process,
helping the parties identify issues, explore possible solutions and reach agreements.
3. Confidentiality: One of the advantages of mediation is the confidentiality it provides.
The discussions that take place during mediation are usually confidential, creating a
safe space for open and honest communication. This confidentiality fosters trust
between the parties.
4. Informal Setting: Mediation sessions typically occur in a more informal setting
compared to a courtroom. This environment can help reduce tensions and encourage a
more cooperative atmosphere.
5. Cost-Effectiveness: Mediation is generally more cost effective than a protracted court
battle. The parties involved can save on legal fees and other associated expenses,
making it an attractive option for those looking to minimize financial strain during
divorce.
6. Speedier Resolution: Mediation often results in quicker resolutions compared to
litigation. Since the process is more focussed and streamlined, couples can reach
agreements in a shorter time frame, allowing them to move on with their lives sooner.
7. Legally Binding: Once the parties reach an agreement through mediation, it can be
formalized into a legally binding document.
8. Child-Centric Approach: Mediation allows couples to focus on the best interests of
their children involved.
Legal Provisions
In India family laws are not unified, personal laws of persons of different religious beliefs are
different.
Here are some of the statues under which divorce is issued in India:
1. The Hindu Marriage Act, 1955: This law standardizes Hindu marriage regulations,
addressing validity, invalidity, and applicability of the statute.

2. Dissolution of Muslim Marriage Act, 1939: This legislation elucidates the dissolution
of marriage under Muslim law and the effects of a married Muslim women
renouncing Islam.
3. Indian Divorce Act, 1869: Focused on divorce within the Christian community.
4. Parsi Marriage and Divorce Act, 1936: This act governs marriage and divorce among
Parsis.
5. Muslim Women (protection of Rights on Divorce) Act, 1986: Addressing the rights of
divorced Muslim women, especially regarding maintenance.
6. Muslim Personal Law/ Application of Shariat Act, 1937: Mandating the application of
Islamic Law (Shariat) to Muslims in India concerning family matters.
Here are some of the provisions under which mediation and settlement are referred for
settlement other than the Mediation Act 2023:
1. Section 9, Family Court Act 1984: Through this section, the Family Court is
mandated to actively promote settlements in suits or proceeding, It must initially
attempt to assist and persuade the parties to reach a settlement, employing suitable
procedures as deemed fit, and subject to High Court rules. If the Family Court
identifies a reasonable possibility of settlement at any stage, it has the authority to
adjourn proceeding to facilitate such settlements. This power supplements other

adjournment powers of the Family Court and is aimed at fostering in family-
related legal matters.3

2. Section 89, Code of Civil Procedure 1908: Settlement of disputes outside the
court. The court, upon recognizing potential for a settlement, is required to
formulate the settlement terms. After presenting these terms to the parties for their
input, the Court can adjust them based on the receiver observations and then refer
the matter for:
a) Arbitration: If the dispute is referred for arbitration, the provisions of the
Arbitration and Conciliation Act 1996 apply.

b) Mediation: The Court may refer the parties to mediation, either at a court-
annexed mediation centre or, any other mediation service provider, or any

mediator chosen by the parties. In this case, the provisions of the
Mediation Act 2023, would apply as if the proceedings were referred for
settlement under the act.

3 Family Court Act, 1984, § 9, No. 66, Acts of Parliament, 1984 (India)

c) Lok Adalat: If the referral is to Lok Adalat, the Court follows the
procedures outlined in the Legal Services Authority Act 1987.
d) Judicial Settlement: Another option available to the court is to facilitate a
compromise between the parties, employing suitable procedures for
judicial settlement.4

Impact of the New Mediation Act 2023 on Divorce Proceedings
Number of cases pending in family courts all over India, according to the Supreme Court, are
11.4 lakh.5 This high number of cases just in the family courts represents the need to bring
efficiency by expanding all the ways in which speedy settlement can be brought in family
court proceedings. To curb this situation, the government has a long way to go, but bringing
the new Mediation Act 2023 is a step in the right direction. The act sets out concrete rules for
mediation that take place in the country, making the process universal and giving it a
government backing that was not explicit previously.
Here are some of the ways the new act will impact divorce proceedings:
1. Mediation Agreement: The outlined provisions of the mediation agreement emphasize
that such agreements must be in writing, involving the parties and claiming through
them, to address all or specific disputes that have arisen or may arise. The clarity and
specificity mandated by these provisions can contribute to the efficiency of divorce
proceedings, ensuring that agreements to mediate are formally documented, reducing
potential disputes over the validity of mediation, and facilitating a smoother resolution
process.
6

2. Pre-Litigation Mediation: Before initiating any civil or commercial legal action in
court, the parties involved in a dispute, including divorce proceedings, have the option
to voluntarily engage in pre-litigation mediation with mutual consent. This proactive
approach encourages parties to explore alternative dispute resolution mechanisms
4 Code Of Civil Procedure, 1908, § 89, No. 5, Acts of Parliament, 1908 (India)
5 Mutha, S.K. (ed.) (2023) ‘19,000 cases pending in family courts in Telangana, 1 1 Lakh in India’: Hyderabad
News - Times of India, The Times of India. Available at:
https://timesofindia.indiatimes.com/city/hyderabad/19000-cases-pending-in-family-courts-in-telangana-1-1-
lakh-in-india/articleshow/98764246.cms (Accessed: 14 January 2024).
6 Mediation Act, 2023, § 4, No. 32, Acts of Parliament, 2023 (India)

before resorting to formal court proceeding. The advantage lies in the potential for
resolving issues amicably and more efficiently through mediation, potentially saving
time and reducing the emotional and financial costs associated with the traditional
court battle. It promotes cooperative and consensual environment, allowing the parties
to actively participate in crafting mutually agreeable solutions, which can be
particularly beneficial in divorce cases where sensitive atter are involved.7
3. Power of the Court/ Tribunal: The Court or Tribunal retains the authority, at any stage
of the proceedings, to refer the parties to undertake mediation. This referral may occur
notwithstanding the non-settlement of the dispute initially. If the court or tribunal
makes such a reference, it has the discretion to issue interim orders to safeguard the
interests of any party, as deemed necessary. Importantly, the parties’ participation in
mediation under this referral are not obligated to reach a settlement, offering them
flexibility and the option to explore alternative resolution methods without a
compulsory commitment to agreement.8
4. Territorial Jurisdiction: All mediations must occur within the territorial jurisdiction of
the relevant court or tribunal competent to decide the dispute. However, parties can
mutually consent to conduct mediation outside this jurisdiction or through online
means. If mediation takes place outside the court's jurisdiction or online, the
enforcement, challenge, and registration of the mediated settlement agreement will be
considered within the territorial jurisdiction of the competent court or tribunal. This
provision ensures flexibility in mediation locations while maintaining a clear legal
framework for the recognition and enforcement of settlement agreements, making it
accessible and effective for parties engaging in mediation under the Act.9
5. Role of Mediator: The mediator’s role is to facilitate a voluntary resolution of the
dispute by effectively communicating each party's views, as agreed upon by them.
The mediator aids in issue identification, enhances understanding, clarifies priorities,
explores potential settlements, and generates options to expedite dispute resolution. It
is emphasized that the parties bear the responsibility of decision-making regarding
their claims. The mediator explicitly informs the parties that their role is solely to

7 Mediation Act, 2023, § 5, No. 32, Acts of Parliament, 2023 (India)
8 Mediation Act, 2023, § 7, No. 32, Acts of Parliament, 2023 (India)
9 Mediation Act, 2023, § 13, No. 32, Acts of Parliament, 2023 (India)

assist in reaching a decision, refraining from imposing settlements or providing
assurances about the outcome of the mediation process.
10

6. Time-limit: The act also states clear a time period for the mediation process to
complete, that is within a period of 120 days, extendable to a period of not exceeding

additional 60 days, fixed from the date of first appearance on the mediator. This time-
limit is useful and important in making this process of settlement efficient and speedy

without dragging it to an extraordinarily long time since that would defeat the
purpose.11
of alternate dispute resolution and could have become just as tedious and draining as
court litigation.
7. Confidentiality: Confidentiality in mediation, as emphasized by this Act, is
particularly advantageous in divorce proceedings. It ensures a safe space for open
communication, allowing parties to freely express opinions, proposals, and concerns
without fear of these disclosures being used against them in subsequent legal
proceedings. The prohibition on audio or video recording adds an extra layer of
protection, fostering trust during sensitive discussions. The assurance that mediation
disclosures cannot be used as evidence in court encourages parties to engage more
openly, increasing the likelihood of reaching mutually agreeable solutions.
Additionally, the exception for mediated settlement agreements provides necessary
transparency for legal processes without compromising the confidentiality of the
mediation itself.12
Conclusion
The Mediation Act 2023 is a welcome development in India for all kinds of cases in general
and divorce proceedings in particular. The legislation addresses the need for efficient dispute
resolution. The act’s emphasis on concrete mediation rules, including a time limit, should
expediate settlements and reduce the backlog of family court cases. It has made mediation
more formal and structured. Even though there are some shortcomings in the act that many

10 Mediation Act, 2023, § 16, No. 32, Acts of Parliament, 2023 (India)
11 Mediation Act, 2023, § 18, No. 32, Acts of Parliament, 2023 (India)
12 Mediation Act, 2023, § 15, No. 32, Acts of Parliament, 2023 (India)

experts have pointed out13, the act is fairly well made. Ultimately, the mediation act 2023
signifies a more positive shift toward a more accessible, efficient, and transparent dispute
resolution mechanism in the legal system.

13 Gulati, S., Sahu, S. and Kanuga, S. (2023) DECODING THE MEDIATION ACT, 2023, Nishith Desai
Associates Decoding the Mediation Act, 2023. Available at:
https://www.nishithdesai.com/NewsDetails/10748 (Accessed: 15 January 2024).