Discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expenses, cost and time.- Abraham Lincoln

There are two ways of solving dispute resolution, one of them is adjudication by a public forum and the other one is adjudication by a private forum. Mediation comes in the second form of dispute resolution. Mediation is to offer the public, a speedy and satisfactory alternative dispute resolution in certain types of civil cases. There are two fold benefits of mediation. First, the parties are able to find an amicable solution by the negotiated settlement to the problem.

Second, the courts will have more space to deal with cases which require their adjudication. The pendency of cases with courts will reduce. Mediation is not meant to dilute the role of courts instead it is there to complement it. Mediation, Conciliation and Lok Adalats are all non-adjudicatory dispute resolution processes, where a neutral third party provides assistance to the parties to reach a satisfactory settlement. In all these processes, the third party listens to both the sides, ascertains the facts and circumstances, identifies the cause for the conflict and facilitates the parties.

In mediation, the reference is by the court to the mediation centre or a mediator, either with or without the consent of the parties. In a mediation, the court retains control over the entire process and consequently whatever settlement is arrived at, is placed before the court and the court makes an order or decree in terms of the settlement.

[1]In the book ADR Principles and Practiceby Henry J. Brown and Arthur L. Mariot (1997, 2nd Ed. Sweet & Maxwell, Lord on Chapter 7, p 127), the authors say that mediation is a facilitative process in which disputing parties engage the assistance of an impartial third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute. The mediator has no authority to make any decisions that are binding on them, but uses certain procedures, techniques and skills to help them to negotiate an agreed resolution of their dispute without adjudication.

Role of Mediation In Preventing Divorce Cases

�Legally speaking, marriage is a contract made in conjunction with the law, where a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms, freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage.[2]

It Is The Spirit And Not The Form Of Law That Keeps The Justice Alive. LJ Earl Warren

According to Blacks Law Dictionary, a divorce is defined as, the legal dissolution of a marriage by a court. The objective of mediation in divorce cases is to assist the parties in reaching a mutually acceptable resolution of the issues in dispute. It is effective when emotions are getting in the way of resolution. An effective mediator will hear the parties and help them communicate with each other in a non-destructive manner.

Mediation will not be effective if one of the parties is not willing to compromise or cooperate.

The concept of mediation centres is rapidly gaining popularity with a success rate of 63%. According to recent court figures, more than 1,36,000 marriages take place every year while some 8,000-9,000 divorce cases are filed each year. In fact, an average of 10 cases is filed per day in just one court.[3]

Section 89 of Civil Procedure Court (CPC)

Section 89 of the Code of Civil Procedure, gives the Court the power to refer the dispute for settlement or conciliation outside the court with a purpose of an amicable, peaceful and mutual settlement between parties. The Law Commission in its 129th Report advocated the need for amicable settlement of disputes between parties and the Malimath Committee recommended to make it mandatory for courts to refer disputes, after their issues having been framed by courts, for resolution through alternate means rather than litigation/trials. The alternate forums accorded under Section 89 are economically more viable as there are relatively lesser amount of transaction costs and thus, there is a need to make people aware about the same.

Hindu Marriage Act, 1955

Under Shastric Hindu law, wedlock was unbreakable and the marital bond existed even after the death of a party to marriage. Divorce was known only as a matter of exception in certain tribes and communities which were regarded uncivilized by the Hindu elite. The courts recognized it in these communities due to the binding force of custom. But the general Hindu law did not recognize it. Divorce puts the marriage to an end, and the parties revert back to their unmarried status and are once again free to marry.

Section 13 of the Hindu Marriage Act, 1955 has introduced a revolutionary amendment to the shastric Hindu law.

It provides for the dissolution of marriage. Under the Hindu law, divorce does not take place unless it has been granted by a court. The provisions relating to divorce is contained in Sec 13 of Hindu Marriage Act, 1955.The Act recognizes two theories of Divorce: the fault theory and divorce by mutual consent. Under the fault theory, marriage can be dissolved only when either party to the marriage had committed a matrimonial offence.

Under this theory it is necessary to have a guilty and an innocent party and only innocent party can seek the remedy of divorce. However the most striking feature and drawback is that if both parties have been at fault, there is no remedy available. Another theory of divorce is that of mutual consent. The underlying issue is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will.

However critics of this theory say that this approach will promote immorality as it will lead to rapid divorces and parties would dissolve their marriage even if there were slight difference of opinion.

Divorce by mutual consent is not new to Hindus and it was recognized through legislation and customs by some states and communities189. But there was no provision of divorce by mutual consent under Hindu Marriage Act, 1955. Section 13-B was added by the Marriage Laws (Amendment) Act, 1976 where the parties can now obtain divorce by mutual consent. This provision is retrospective as well as prospective. Hence, parties to a marriage whether solemnized before or after that Amending Act can avail themselves of this provision. If both the parties have agreed to dissolve their marriage, they may do so in a more civilized and cultured way than by quarrelling between themselves in a court.

In Section 23 (2) and 23 (3) of the Hindu Marriage Act, 1955, the Court is directed to try reconciliation between the divorce-seeking parties, depending upon the nature and circumstance of a case. As was done in the case ASHOK VS. MEENABAI[4] but the same was not successful.

By order dated 15/4/2019 this court has relegated the applicant and respondent for mediation. During the course of mediation, the respondent/wife gave an offer for withdrawal of 50-50% amount from the joint account and settle the dispute, but the applicant did not agree and the mediation was failed.

There are chances where mediation does not work but there are many cases where mediation serves as the best method for dispute resolution. As was in the case NIMITA NEMA V. SANDEEP NEMA[5] in which they voluntarily agreed for settlement.

Apparently, the parties have arrived at an amicable settlement and agreed that on the respondent paying a sum of Rs. 14,50,000/- (fourteen lac and fifty thousand) to the appellant, the appeal shall not be pressed by the appellant and that the same may be dismissed affirming the decree of divorce.

This shows that parties made this settlement on its own and this is a point of difference between conciliation and mediation. In conciliation the third party which has come to solve the issue decides what settlement has to be done whereas in mediation both the parties to the dispute decide.

Why Mediation Is Better Than Tradition Litigation Methods In Family Matters

Mediation is better than tradition litigation methods due to various reasons which are as follows:

• Quicker- Mediation takes very few days to finish the proceedings as compared to other methods. It takes minimum 21 days and maximum 4 months whereas lawsuits take months or years.
• Less Expensive- Mediation is less expensive than typical lawsuits. The first two hearings of it are free and even from the third hearing very nominal costs are taken. A mediator costs significantly less than employing a lawyer.

Less Formal- The informality of mediation allows the parties to be more engaged than they would be in a court-driven process with an abundance of rules and procedures designed to separate the parties. Accordingly, since the mediator deals directly with the parties, the mediator can focus the attention on the parties, upon their needs and interests rather than on their positions.

Confidential- Mediation is typically private as compared to court cases where everything is public. This reason alone is a great reason for using mediation for dispute resolution rather than other methods as nobody wishes to reveal its issue.

Preserves Relationships-One of the benefit of mediation is that it helps us to preserve relationships, business and personal things that are likely to be destroyed through years of litigation. This is because it is a collaborative rather than adversarial process.
Control- In mediation, unlike in lawsuits, the parties are in control which means that the parties have a much greater say in negotiation and control over the outcome.

Better Results- Parties generally report a better outcome as a result of mediation than they do in court cases because there is no winner or loser and the settlement is mutually agreed upon. The parties are therefore more satisfied with it.

Thus mediation is considered better than any other method in divorce cases as people usually wish to settle the dispute rather than being separated for life because of the social stigma which hangs as a sword upon them.

Visit To The Mediation Centre In The Family Court of Jabalpur

The experience in the mediation centre was very helpful as talking personally to the lawyers, judges and even the litigants was very effective in knowing the practical issues. Two Questionnaires were prepared, one for the lawyers and judges and the other one for litigants.

Questions To Lawyers And Judges

1. What is the nature of cases which come for mediation mostly
2. What is the age group which comes for mediation?
3. Are people who come for mediation both employed or unemployed?
4. At what stage do they refer the case for mediation?
5. How is the response of the litigants towards it?

Answers
Mostly the cases related to Dowry, Domestic violence, Extra marital affairs, Desertion and Cruelty were noted down. These are the main issues for which divorce cases are registered.

Mainly people between the age group 25-35 come for issues like extra marital affairs. And mediation can be said to be prevalent in between 25-50 age group.

No basically people who come have on the member who is employed. Mediation is commonly seen uneducated people as they have a sword of social stigma stuck over them. Educated people also come there where both are members are working and thus because of less communication or miscommunication they have disputes.

In the beginning only or when they are at a stage where a common decision through the communication between the parties can be achieved, the case is been referred for mediation.

The litigants usually happily agree for giving a try to mediation. But the situation is not same in all the cases rather there are people who have come with the decision of having divorce and they dont even wish to solve the issue through mediation.

The above discussion with the judges and lawyers reflected that more and more people are going for mediation to solve their issue and are actually happy with it. The inconvenience and delay which is being caused in court cases is not preferred by people due to their busy schedule. And this is a positive effect which is seen now-a-days.

Questions To Litigants

1. Are you a plaintiff or a defendant?
2. How would you rate your first impression of the mediator handling your case?
3. How clear was the explanation of the mediation process offered by the mediators?
4. Did the mediation process addressed the main issues of your dispute?
5. How satisfied were you with the overall mediation?

Answers
I had a conversation with both the parties involved in a dispute. Their matter was brought into the court because of the issue of extra marital affair for which the wife accused the husband. They were advised for mediation at the stage when all of their doubts were solved.

The wife named Mrs. Sangeeta Soni said that at first she was not comfortable in mediation but later on after the first hearing she thought that the issue will be solved more effectively as she had the chance of representing her own case. On the other hand the husband named Mr. Ratanlal Soni was happy with the process from the beginning only and had no issue over it.

The process of mediation was explained clearly by their respective lawyers firstly and then even the mediator explained them.

Yes the issue was properly addressed and both the parties were heard together also and then separately too for solving their grievances.

The case has not been completed yet but until now both of them were satisfied with the process going on.

Part of Awareness Programme
Indian Mediation Week, is a pan-India mediation awareness initiative, being organized with the support of Ministry of Law and Justice, Government of India and Supreme Court Mediation and Conciliation Project Committee (MCPC).

I am working as a volunteer in this programme and my work is to conduct mediation drives creating awareness about mediation among the general public especially the poor oe uneducated people. What we do is we give a pamphlet to the person and then inform him about the benefits of mediation. There are people who are interested in telling their cases so what we do is we take their number and further transfer the information to the concerned authority. They then contact these people after a period of 15-20 days and the cases are been discussed and solved.

The cases which I have collected so far are basically property dispute cases and cheque bounce cases. There are some cases of family dispute also relating to divorce and cruelity. One such case of divorce which I came across was of a street vendor who was very much exhausted with his wife who left him and went to her fathers house with all the gold jewellery present in the house and it has been 7 months since then and nothing has been done. The person wanted to resolve the issue but the other party,i.e. the wife was not in support of it. We advised him to go for mediation and he even asked us to forward his case with a mark of urgency. We have forwarded the case and the further process will be done soon.

This shows that people are in dire need of having an alternate method of solving their disputes but they are not aware of the methods already present in our country. This initiative is a great step towards creating awareness about the same and every person who is aware of mediation should circulate the information so that the people in need are helped by it.

Conclusion
When a couple files for divorce, disputes often arise over the division of marital property, as well as care and custody of the children. In many cases, each spouse hires an attorney to help them out in court. An alternative option that can save both parties from a great deal of time and money is divorce mediation. Such mediation takes place in the same manner as other civil mediation where the mediator helps the parties to arrive at a solution based on their own ideas of what is fair rather than leaving the decisions up to a judge.

In addition to saving time and money, mediation often helps the couple improve communication. Mediation is confidential, and gives each spouse a greater feeling of control over the outcome of their case as compared to litigation.

This project has taught me very different and important things of which I was not aware before. The visit made it even more pragmatic and helpful to know the process of mediation. There are many advantages of mediation and even making people aware made it more interesting. But it was a saddening part that mostly people were not aware about it but it was great that they were interesting in knowing about it and even using it.

It has been beautifully said by Salman Khurshid, Former law minister and senior advocate that Very impressed by your foresight, endeavour and commitment to life without conflict. Any effort that is taken up by young people, even before they become lawyers, while they are preparing to become lawyers, to attitudinally work towards dispute resolution through mediation, through alternative systems, needs to be welcomed and those who are participating, needs to be welcomed and those who are participating in it, I believe ,are angles of service to humanity. Thus each one of us should try to make people aware about this method so that the deprived people can take the best out of it.

More research is needed on the conditions under which people will enter negotiation and mediation and the conditions under which they will take other routes when faced with a conflict. Even in family matters other methods can be used but mediation as per my view will be best suited for it.

End-Notes:

1. 2019 SCC OnLine MP 1893 Para 7
2. 2017 SCC OnLine MP 766 Para 2