In the current times, where there is a backlog of nearly 27 million pending cases out of which about 55,000 are related to divorce[1], a constructive alternative to courts has come our way, and that is alternative dispute resolution mechanisms like mediation, arbitration, and conciliation are gaining popularity due to their speedy nature in resolving disputes. Parties may take advantage of these forums to seek relief without a need to involve litigation, therefore "outside the courtroom".

One of the most potent ways of mediation is a form of alternative dispute resolution. Mediation is made available as an option for redressal of matrimonial disputes under Section 9 of the Family Court Act, 1984 and it confers to the court the power to adopt any means of mediation. The conflicts are resolved through a third party who is known as a mediator.

It relies on a non-coercive and consensual settlement mechanism to resolve disputes between parties, which makes it incredibly effective. In a family, conflict is inevitable, but it needs to be handled with patience and in a way so that both parties benefit from the resolution. Mediation also speeds up the settlement of disputes rather than the legal system of court proceedings.

Synchronizing Mediation With Matrimonial Disputes

Mediation has turned out to be convenient when it comes to family law disputes. The disputes which arise in a family are very crucial and they need to be taken care of with patience and also to reach a solution where both parties can benefit. It also solves disputes faster than it happens in court.

For example, according to Section 12 of the protection of women from domestic violence act, the case has to be dismissed within 60 days, but looking at the current backlog of cases and the burden on the judiciary it is not possible for the courts to dismiss the matters within the 60 days. Hence, this is where the mediation comes to the rescue and helps in dispensing timely justice and reducing the burden of the courts.

In the case of K. Srinivas Rao V D.A Deepa, the Supreme Court of India encouraged the use of mediation in matrimonial disputes. This method of referring matrimonial disputes for mediation is being followed by various High Courts too.

How Effective Is Mediation In Matrimonial Disputes?

As the social and family circumstances continuously change, the younger generation is facing many new challenges, including insecurity, the shifting roles of husband and wife, and the stress of fast-paced living. All of this could very well lead to some misunderstandings which can lead to disputes. Unlike other types of contractual conflicts, these have emotional, social, and personal components. The traditional legal process is frequently incompatible with these requirements. The unsatisfied side turns to appeals, reviews petitions, and so on, in the hope of reaching a favourable judgment.

Furthermore, a lack of communication is the root of most relationship issues. Mediation is a method of promoting communication, understanding, and resolution via the use of an impartial mediator. Since the parties are likely to continue a relationship, especially if small children are involved, mediation is especially appropriate for divorce and other family law disputes. Many divorced wives benefit from mediation to avoid the high costs of divorce litigation.

Mediation allows couples to avoid a lawsuit, maintain secrecy, and lessen chaotic arguments. For instance, in the case, of Mohd. Mushtaq Ahmad v. State, When problems emerged between the couple after the birth of a female baby, the wife filed a divorce petition along with an FIR against the husband under Section 498A of the IPC. Under Section 89 of the CPC, the province's judicial system ordered the parties to engage in mediation. When the wife decided to quash the FIR, the case was settled peacefully through mediation.

Though mediation has varied benefits like timely justice, and confidentiality to mention a few. The critics of the mediation also have certain problems with the use of mediation in matrimonial disputes, especially regarding the mediation in cases of domestic violence.

Section 89 of the CPC talks about the use of mediation in 'civil' matters and not in criminal matters, and domestic violence as an offence is described in Section 498-A of the IPC and under section 320 of the CrPC it is a non-compoundable offence, therefore it becomes sufficiently clear that mediation as a technique cannot be used in the cases of domestic violence.

However, the stance taken by the judiciary is quite different from the one mentioned above. The judiciary has shown no reluctance in adopting mediation as a tool for settlement even in criminal cases for that matter.

In Gurudath K. v. State of Karnataka, the court stated, "Even if the offences are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably … Section 320 CrPC would not be a bar to the exercise of the power of quashing of FIR or criminal complaint in respect of such offences." Thus, the court allowed for the offences to be compounded on concluding that the wife was under no threat or coercion for the same.

Hence, as a result, the accused in domestic violence cases are now less afraid of being convicted. The seriousness of such crimes, according to critics of mediation, should not be diminished by simply pardoning the accused and reaching an amicable settlement. The accused must be imprisoned so that they can be reformed before re-entering society. The victims of domestic violence in the situations we've observed so far have agreed to forgive the perpetrators and reach an amicable resolution. Should the State, however, acquit the guilty simply because the victim's approval was given?

Connecting The Dots And Way Forward?

It is a settled principle that mediation is a good technique to be appointed to settle disputes but mediation should not be used everywhere, especially in cases of domestic violence. Domestic abuse cases are on a rampant rise since suspects are no longer afraid of being prosecuted. As a result, the government must recognize and confront this situation, which is posing a serious threat to society.

As of now, the Arbitration and Conciliation Act of 1996 makes no mention of the use of mediation in matrimonial disputes, and even statutes that mention mediation as an alternative dispute resolution mechanism are silent on the issue of domestic violence and how it should be dealt with by the Indian courts. Hence, this is the arena where the government needs to look upon and fill the lacunas to improve the efficiency of the judicial process in India.

Conclusion:
In a nutshell, mediation is quickly becoming one of the most popular methods for resolving conflicts around the world, with many multinational corporations opting to settle their problems through mediation. The Indian judiciary is following in the footsteps of the rest of the globe and is gradually incorporating alternative dispute settlements into its judicial framework. According to the 129th law commission study, alternative dispute resolution should be made necessary once the court forms the charges.

As a result, using mediation as a dispute resolution technique in marriage problems is natural. However, courts must exercise caution when sending issues to mediation because the facts of each disagreement differ and each dispute demands a unique solution.

End-Notes:

1. Pandey, V. (2010), 55,000 couples waiting for divorce in India/Latest News & Updates at Daily News and Analysis, available at https://www.dnaindia.com/india/report-55000-couples-waiting-for-divorce-in-india-1400514

Written By:

1. K Dalima Pushkarna, Second year students of RMLNLU and
2. Vishakha Shakya, Second year students of RMLNLU