Vivekanand School of Law

and Legal Studies

Mediation in Family
Disputes
PSDA-Family Law 2

Vipul Parashar
2621770382
INTRODUCTION

Mediation is the most effective alternative dispute resolution (ADR)strategy in cases relating
to family and matrimonial disputes. What makes this method so beneficial is that it entails
non-coercive and consensual processes to resolve disputes between the parties. This method
saves time and diminishes possibilities of any ill feelings and estranged relationships that
might accrue as a result in case the parties choose to go for litigation in the courts of justice.
This is the reason why the process of Mediation has been widely accepted for resolving
family disputes not only in India but across the world’s legal arena.

Family disputes, because of their unique nature benefit the most when resolved through
mediation. A family dispute is not only a matter of law and facts but is also a matter of the
feelings associated with the parties to the dispute. A family, facilitated by marriages, is the
most basic unit of societal relations, and to save such an essential unit of the social network
has been the primary aim of the courts and legislation, as can be seen by the cumbersome and
extensive processes in place to get annulments and divorce. A Hindu marriage is sacred,
similarly Muslim marriage is seen as a contract to be valued. Preserving such bonds and
contracts to whatever extent possible ensures that the societal fabric remains intact.
Mediation, therefore, is an ADR method that aims to assist two parties to a dispute to reach
an agreement that is favourable to both of them and also caters to the needs of both or all of
the stakeholders, also making efforts towards the re-establishment of harmony in societal
relations amicably.

The mediator facilitates negotiations between the disputants and develops an environment of
comfort for both the parties to assist them to explore and think about each other’s point of
view, thereby enabling an effective settlement of a dispute. His role is set to creating a sense
of comfort for both the parties to open up and discuss their grievances, which were the source
for their choice to take up litigation for such a dispute, in his presence to identify the areas of
contentions and consequently narrow it down to a precise matter, which constitutes the bone
of contention

According to Justice Manju Goel1, a former judge in the Delhi High Court, the strategies to
be adopted by the counsellor or the mediator while resolving family disputes are:

-Probing of facts

1
https://delhicourts.nic.in/dmc/articles.htm
-Identifying the real cause of contention

-Exploration of possibilities of reconciliation or separation

-Bring the parties to a consensual solution

-Shaping the solution in a legal format

Indian Perspective- Legal promulgation

-Section 30 of the Arbitration and Conciliation act 1996 says that the Arbitral Tribunal must
use mediation to encourage settlement of disputes

-Section 89 of the civil procedure code,1908 states that the courts may refer to the parties for
mediation if it appears that there exist elements of a settlement

-Section 6 of the Family Courts Act,1984 explicit appointment of permanent counsellors to

effect and facilitate settlement in cases of family disputes.

-Moreover, Section 9 of the Family Courts Act, 1984, Section 89 and Order XXXII-A of the
Civil Procedure Code, 1908 makes it a compulsion on part of the court to give an equal
chance to a consensually negotiated settlement before adjudication is embarked upon.

-Section 23 of the Hindu Marriage Act, 1955 also concentrates on attempting reconciliation
by the judge itself

Advantages Of Mediation and its Effectiveness

It is the role of the mediator to elicit the facts from the point of view of both the contending
parties and he would reshape them in a clearer and expressive manner to let the parties focus
on the actual areas of conflict rather than deviate from the point of contention, thus allowing
the parties to come up with creative solutions which might not be possible in a third party
coerced legal solution.

Mediation with regards to matrimonial disputes is completely different from mediation in

commercial or property disputes because marital disputes are very much different from other
disputes because of the presence of certain factors such as feelings, emotions, personal
liabilities, responsibilities, sentiments and the institution of marriage in particular. Irrational
and emotional factors play a major and dominant role in resolving matrimonial disputes. His
aim is very clear: to discover a solution to the dispute in question, causing minimum damage
possible to the disputants.
The mediator has to play the role of a counsellor to lead the parties to an amicably acceptable
solution to the conflict which would bring about considerable peace between the disputants.
The mediator has to advise the parties and he may also have to act diplomatically to influence
the parties to focus on the positives of a proposed solution. The solution to the disputes in
question can be proposed by either of the two parties or by the mediator himself.

The overall job of a mediator would be to continuously reduce the gaps in the propounded
solutions from both sides. Considering that once all the issues related to emotional and social
factors are dealt with, it becomes much simpler to resolve the disputes further and reach a
probable solution with the satisfaction of both the disputants.

The process of mediation might require more than one mediator to help the parties arrive at a
mutually acceptable agreement. It depends upon the kind of disputes between the parties and
the emotional and mental situation of both. At every stage of the mediation procedure, each
party can take the advice and suggestions of their respective lawyers, thus avoiding the
adversarial nature of the litigation process.

Domestic Violence and Mediation

Section 498-A of the Penal Code, 1860 (IPC) deals with issues of domestic violence. Under
Section 320 of the Code of Criminal Procedure (CrPC), this comes to be a non-
compoundable offence where no compromises are allowed to be made. However, Indian
courts have time and again referred the parties to mediation in resolving matrimonial disputes
regardless of the nature of the offence. The judiciary has shown no reluctance in adopting
mediation to settle matrimonial disputes, even in criminal cases like Mohd. Mushtaq Ahmad
v. the State of Karnataka2

The court’s intention to settle disputes amicably is clear. The intention of the court matches
the ideology of the advocates of mediation, which is to protect family relationships and
provide speedy justice.

Due to this move of the Indian courts, the accused are less probable of being convicted in
cases of domestic violence. This is where critics of mediation come in, who hold mediation to
be wrong as the wrongdoer escapes without being punished. Even though the law explicit
offences of such nature from being compounded, the judiciary has time and again ignored
this provision in the “interest of justice”.

2
(2015) 3 AIR Kant R 363
Landmark judgements encouraging Mediation in Family Disputes

Ramgopal and Anr. vs. State of M.P.3

In this case, certain cases which were not compoundable in the Indian Penal Code like
Section 498A were to be made compoundable for the easy settlement of parties between
themselves and which would also shed some burden from the workload of the Judiciary.

B.S. Joshi & Ors. vs. State of Haryana & Anr.4

In this case, the court held that criminal proceedings can be quashed at the discretion of the
High Court by the use of the power put in the court as per Section 482 of CrPC. It was an
appeal petition made in front of the Supreme Court. The wife had filed an FIR against her
husband and later, according to her, their relationship was good and the FIR was registered
without thinking. According to the Supreme Court, courts should encourage reconciliation
especially in matrimonial conflicts of such kind.

Afcons Infrastructure Ltd. vs. Varkey Construction Co. Pvt. Ltd.5

This is one of the most landmark cases relating to the mediation. It is a landmark judgement
in which the court clarified that results of the mediation should be showcased to the court and
when the court refers the party for mediation then the reason for giving the final choice of
mediation shall be recorded.

Dr Jaya Sagade vs. The State of Maharashtra6

Here is the circular which was unanimously passed by the Maharashtra Government stating
that a party can opt for mediation without going to the court and only the cases related to
domestic violence should be first filed and then only the parties can go for mediation.

Salem Advocates Bar Association vs. Union of India

Originally, this case was Salem Advocates Bar Association, Tamil Nadu. v. Union of India
and the aforementioned case was just an aftermath of this case. It seeks to reduce the burden
from the judiciary by reducing the number of suits filed in court every year. This case looks
after a speedy trial and timely administration of justice. Various sets of rules were put in
3
(2010) 13 SCC 540
4
AIR (2003) SC 1386
5
2010 (8) SCC 24
6
(2005) 6 SCC 344
place for the smooth functioning of alternative dispute resolution by the committee set up by
the court in the matter

Mediation in Domestic Violence Cases

The critics of mediation believe that the seriousness of such crimes should not be undermined
by simply pardoning the accused and just settling matters amicably. The accused must be
sentenced to incarceration so that they are reformed before entering society again. In the
cases we have seen above, the victims of domestic violence have agreed to forgive the
accused and settle the matters amicably. But should the State just acquit the accused merely
because the victim’s approval has been affirmed to do so?

In K. Srinivas Rao v. D.A. Deepa7, the Court held:

44. … “though offences punishable under Section 498-A IPC are non-compoundable, in
appropriate cases as and when the parties are willing and if it seems to the criminal court that
there exist elements of the settlement, it should instruct the parties to explore the possibility
of settlement through mediation…. The Judges, with their expertise, must ensure that this
exercise does not lead to the erring spouse using the mediation process to get out of the
clutches of the law.”

It is quite evident from this holding that courts have not turned a blind eye toward the fact
that this offence is non-compoundable. The Court’s actions are all done in good faith to save
parties from the hectic court procedures8 The Court has carefully put the word “appropriate
cases” in the first line, which means that all dispute cases of such nature will not be referred
to as mediation. It is only those that the court considers being appropriate to be sent for
mediation.

There should be no strict watershed distinction for which cases are to be referred to
mediation. Cases should not be divided into the category of compoundable and non-
compoundable. What is essential is to distinctly look at the facts of each case individually to
see whether mediation would be a viable option for the parties or not. Each case is of a
different magnitude and must be judged by scrutinising the facts of that particular case and
the discomfort caused to the victim carefully.

Conclusion
7
(2013) 5 SCC 226, 241-242: AIR 2013 SC 2176.
8
https://www.scconline.com/blog/post/2018/05/17/mediation-of-matrimonial-disputes-in-india-domestic-
violence-cases-to-mediate-or-not-to-mediate/#_ftnref2 (last accessed on 15th march 2021)
All over the world, alternative dispute resolution is slowly and steadily becoming the
preferred way of settling disputes outside the courts of law. Even many MNCs including
large business conglomerates are seriously looking into the advantages of resolving disputes
through mediation and have also started considering it as a viable alternative to litigation
because it avoids the lengthy and expensive proceedings of the courts in India. The multiple
levels of appeal also tend to exhaust both parties and make it a heavy burden on the system of
courts. The Indian Legislature, promoting the mediation route, has also been trying to link the
bridges to fall in line with the evolving global jurisprudence.

The Law Commission of India has sought to bridge the gap between the diverse personal
laws of various religions prevalent in India at least in the matter of resolving disputes related
to family and matrimony. Even the 129th Law Commission Report recommended that the
alternative dispute resolution methods must be made obligatory in the courts after the issues
have been framed.9

The different alternative dispute resolution methods that are defined by law are arbitration,
mediation, conciliation and judicial settlement. Section 89 of the CPC, 1908 lays down the
mechanisms and procedure for these alternative modes of dispute resolution in matters of
civil nature in India

Marital disputes should be considered for mediation because mediation is a very private
process, the mediator simply has to send a complete report to the court stating if the
mediation was successful or not. The fact that the whole mediation process is completely
confidential makes the parties to the conflict comfortable enough to open up and talk about
their problems freely without any hesitation that the information related to personal issues
might not be dealt with sensitively.

9
http://www.legalserviceindia.com/legal/article-1715-mediation-in-family-and-matrimonial-disputes.html
(last accessed on 15th march 2021)