In a marriage, conflicts often arise when the couples fail to understand one another. Earlier, it was elders who would mediate in matrimonial disputes to settle things, avoiding divorce. In recent times, the family dynamics have changed and an external third party does the deed. Being a neutral third party, a mediator assists parties reach amicable settlement in marital conflicts. Let us discuss the role of mediation in matrimonial disputes to understand how a mediated approach helps mend conflicts in a marriage.
What is Mediation in Marital Disputes?
Mediation in law can be understood as external intervention between parties in conflict, to resolve the dispute. When married couples end up in a conflict and the marriage faces the downside, mediation is recommended. It is a negotiation process facilitated by a neutral third party who helps find a solution for conflicting couples.
Mediation is sometimes effective, and legally binding as well. Because sometimes, married couples do not listen to each other and assume that the other side is doing all the wrong against the marriage. With intervention by a neutral party, they sometimes get a chance to understand their spouse’s perspective.
There are certain plus factors which help parties opting for mediation in matrimonial disputes. Confidentiality, mutuality, price effectiveness, informal and fastrack procedures, power of management, freedom of parties to reject the end result, etc.
There is pre-litigation mediation and court-referred mediation. When conflicts appear in a marriage, parties may directly seek conciliation with the help of a mediator. In other cases, the conflicting spouses may have reached the Court for separation or divorce, and it may be Court-initiated mediation. Depending on the nature and circumstances of the case, the Hindu Marriage Act of 1955 directs the Court to seek reconciliation between divorce-seeking parties. The Special Marriage Act of 1954 also allows the Court to choose reconciliation as the first-instance option in divorce cases. The Family Courts Act, Section 9, also requires the courts to attempt to resolve family conflicts.
Mediation Process in Matrimonial Disputes
The mediation process in any dispute is usually four-folded:
- Introduction
The process of mediation in matrimonial disputes begins with the mediator introducing himself/herself. He/she provides information like name, areas of expertise (if any), and years of professional experience. The mediator comes up with the purpose of meditation, and the parties to marriage make an opening statement explaining their version of dispute.
- One or more Joint Session
The parties may be allowed to tell their case, explain perspectives, vent emotions, and express thoughts. The mediator makes sure it goes without any interruption or challenge. The mediator may ask questions, clear his/her doubts, and identify areas of disagreement/matrimonial dispute.
- One or more Separate Sessions
Separate sessions allow the mediator to get more peculiar information to follow up on the issues and consider particular emotions. During inquiries or discussions, the mediator has to be precise, succinct, and sensitive to the concerns and feelings of the parties. If needed, separate sessions may again be followed by joint sessions.
- Conclusion
If mediation stands a success and the mediator is able to bring parties to a resolution of dispute, that is an achievement. Even if the dispute is not resolved and a settlement is made on mutual terms, that is also not bad. Another possibility of mediation is failure, where no positive outcome is reached. Either case, the mediator is required to submit a report before the Court if a suit is pending and it was Court administered mediation. The mediation process has to be confidential, and therefore, the success report only states the terms of settlement, and failure report only conveys that the mediation failed.
Role of Mediation in Matrimonial Disputes
- The parties agree to work together to find a solution that is acceptable to both of them through mediation. Thus, a mediator allows them to have some control over the outcome.
- The mediator has to prioritize emotional aspects as compared to financial or mundane facets. These include life in general, motivation, sentiments, social compulsions, personal liabilities and spousal responsibilities.
- The mediator plays a special role of assisting the couple to mend or rebuild a matrimonial relationship. Therefore, he/she has to be careful about the role of mediation in matrimonial disputes, because it is a make or break opportunity.
- A mediator in his capacity has to act as an elder, a sibling, a friend, and an understanding person, all at once. He/she has to explain the expected consequences to both the parties, and prepare them to come up with an answer to the conflict.
- If the parties do not come up with an amicable approach to their conflict, the mediator may have to propose certain ways out for their lasting peace.
- Marriage at times comes to a halt because spouses stop expressing their feelings and issues to each other. During mediation, the neutral party may have to bridge any communication gaps between the parties. Both the parties should be very clear about the conflict, and its probable solution, whether there is scope for their marriage or not.
- Confidentiality and secrecy is upheld in all cases, whether mediation is a success or it is a failed mediation.
- Successful mediation encourages closure, and does not follow with additional appeals, revisions, or litigation.
Pros and Cons of Mediation in Marriage
| Advantages | Disadvantages |
| Mediation brings scope for safeguarding family relationships and extending speedy justice. | If mediation fails, it is a waste of time and resources for the parties as well as the government. |
| Since they are secret and confidential, parties need not worry about anything said being used against them in the Court. | Mediation is not good when crimes are committed in the name of marriage. In such cases, the offender may flee without facing consequences of wrongs committed. |
| Mediation has scope to result in joint custody, benefiting the children and parents, ensuring a future with both parents. | Since it is about once familial relations, aggression at times goes beyond control and badly impacts the marital relationship. |
| The binding nature of settlement entered during mediation makes sure parties do not back out from their commitments. | An unskilled mediator may lead to an incomplete mediation, or favour one spouse over the other. |
| Even if mediation fails and conflict remains, parties can go back to litigation at the point where they left. The role of mediation in matrimonial disputes is to assist, and it harms no one. | A clever partner may conceal facts, assets or income, leaving the weaker spouse bankrupt if the secret financial assets are not discovered. |
Supreme Court on Mediation for Family Disputes in India
K. Srinivas Rao v. D.A. Deepa (2013)
In this case, the Supreme Court batted for mediation in marital disputes. The Court shared that “Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted. Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres. Our experience shows that about 10 to 15% of matrimonial disputes get settled in this Court through various mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation.”
B.S Krishna Murthy v. B.S Nagaraj (2011)
The Apex Court here handed over the responsibility upon lawyers to advise their clients to go for mediation. The Court particularly emphasized upon resolving disputes where relationships like family or business relations are involved. The Supreme Court reasoned that “litigation drags for years and decades often ruining both the parties. Hence, the lawyers as well as litigants should follow Mahatma Gandhi’s advice in the matter and try arbitration/mediation.”
Moti Ram v. Ashok Kumar (2010)
The Supreme Court hit the nail with its precise observation on what a mediation report should include. The one here mentioned the proposals made by the parties. Hence, the Court seized the opportunity to clarify for the mediators to know what kind of reports they should send to the Courts. Rather than going into details or reasons, the Apex Court expressed that the mediator “should only have stated that the mediation was unsuccessful.”
