THE ROLE OF MEDIATION IN FAMILY DISPUTES

 

THE ROLE OF MEDIATION IN FAMILY DISPUTES

By Merin Sebastian

 

Introduction:

The concept of family is one which has been highly analysed and theorized about through the ages. It is the smallest unit of society, acting as a microcosm for the environment at large, encapsulating its social norms and culture. In all societies across the planet, families are viewed as inherently valuable, with marriage relations being encouraged to strengthen ties between two families and ensure the continuation of lineages. These structures provide people with the care they require and also gives them provisions for food, shelter and security till they can acquire their own. It also acts as the main foundation which gives love, support and consideration which is imperative in the formation of a healthy person. But even within these units, it is not all smooth-sailing. The issues can range from harmless arguing at the dinner table fights to longstanding property disputes. These problems occur inevitably and so there arises the need for a system that can sort it out. 

The need for an alternative:

Since, it is a safe space for vulnerability, any dispute related to family and matrimony are highly intricate and emotionally charged issues that often involve complex relationships and profound emotions. The situation can get tense in case of incorporating tradition litigation techniques into this space. The adversarial nature of it has the tendency to escalate conflicts and create life-long animosity among the family members. If every single issue is taken to court, it would not only impair the justice system’s ability to dole out judgements in a timely manner, it would also impair the quality of said decisions. There is also the issue of accessibility, wherein it may not be possible for all people to approach judicial courts. So, it becomes important for an alternative dispute resolution to intervene in these cases in order to protect the institution of the family. 

In light of this issue, mediation has emerged as a rational solution, offering a constructive and transformative approach to resolving family and matrimonial disputes. Mediation is a voluntary and confidential process in which an impartial third party, the mediator, facilitates communication and negotiation between disputing parties. The concept of mediation is set apart from the traditional court system, as the decisions of the mediator cannot be imposed on the parties. Rather, they are committed to helping both parties reach a mutually agreeable solution. By taking on a neutral role, they are entrusted in bringing about a resolution that shall be equally beneficial to all and this process is characterized by open dialogue, active listening, and collaborative problem-solving. It promotes familial harmony rather than simply cutting ties with your blood relations. The guiding principle behind mediation is to encourage reconciliation and discourage separation amongst family members. 

The role of mediation has been given legal validity too in various cases. For instance, in the case of Manas Acharya vs. State & Anr, the court held that the agreement between the husband and wife who sought out help from a mediator to solve issues of domestic violence was a legally valid one and that the resolution arrived at is binding on both parties. In the case of Dr. Jaya Sagade vs. The State of Maharashtra, there was a petition filed against a circular put out by the Government of Maharashtra which related to counselling/mediation in case of domestic violence. The petition argued for a more equitable and expansive utilisation of mediation services to benefit aggrieved women, saying that these services were chronically underutilised due to the necessity of a court mandate to acquire mediation facilities. The court ultimately set aside the circular and held that the abuse victims can approach mediators on their own accord and have to be informed of their rights in case of mediation, and cannot be pressured to settle, emphasising their autonomy. 

The Mediation Act, 2023:

The success of this system has led to the creation of the Mediation Act 2023, which aims to strengthen the promotion of mediation as an alternative dispute resolution. It builds upon earlier legal frameworks and international best practices to create a comprehensive and standardised system for mediation in many jurisdictions. The Act seeks to streamline the mediation process, ensuring its accessibility, effectiveness, and the protection of parties’ rights. It effectively details the rights of the parties and the duties of the mediators. Clear definition related to the process are given, such as that of mediation which includes various types including online and community ones, and that of mediator, who is a person who is appointed by the parties or by a mediation service provider. 

With regards to issues that affect the tranquillity of community residents or within the families in that locality, Chapter X on Community Mediation relays that it can be settle through mutually consensual mediation. The concerned parties can approach authorities under the Legal Services Authorities Act, 1987 who shall employ a panel of 3 members to evaluate the situation. The mediators can be a person who is valued and respected within the community, a representative of resident welfare associations, one having previous experience with mediating or any other person deemed appropriate. The panel members have the duty to provide assistance to the parties to solve their issues amicably. The final decision will further the purpose of maintaining peace within the locality, but it cannot be legally enforceable.

Benefits of Mediation:

Mediation holds many advantages when it comes to familial disputes. The voluntary nature of it creates a sense of safety and autonomy. The consensual nature of the relationship ensures that members willingly participate in the process. This creates a feeling of empowerment as they themselves play a role in crafting their future. This sense of ownership cannot be achieved in courts where the final outcome does not rest in the hands of the parties. The autonomy afforded by mediation allows parties to explore creative solutions that better suit their unique circumstances. The utmost importance given to confidentiality also fosters a sense of privacy, creating a conducive and judgement-free environment where individuals can express their opinions. Maintaining privacy is particularly crucial in family and matrimonial disputes, where the preservation of personal relationships and reputations is paramount. 

Mediation is a tool that is based on facilitating effective communication between parties. It provides a structured platform for parties to express their concerns, needs, and desires and the mediator ensures that each party feels heard. This freedom is not helpful in the short term, but also in the long run as family members shall have better communication tactics that can help prevent similar issues in the future. 

Conclusion:

There is a need to preserve the sacred institution of the family and mediation stands out as a powerful and transformative tool in resolving family and matrimonial disputes. The Mediation Act is a testament to the growing need for this. Its voluntary nature, emphasis on effective communication, and ability to preserve relationships distinguish it from traditional litigation. Mediation's cost-effectiveness, timeliness, flexibility, and focus on emotional healing contribute to its efficacy in addressing the multifaceted challenges of family and matrimonial conflicts. By promoting collaboration, understanding, and tailored solutions, mediation offers families a path toward resolution that is not only legally sound but also emotionally satisfying. As we navigate the complexities of family dynamics, the benefits of mediation shine brightly as a beacon of hope for those seeking a more amicable and holistic approach to dispute resolution.