[This article is authored by Kamakshi Puri, a law graduate from JGLS, Sonipat.]

Keywords: Family Law, Mediation, Code of Civil Law.

Introduction

This piece aims to act as a primer on court-referred mediation in family disputes by Family Courts in India. It will try and answer a range of questions starting from the power of a Family Court to refer cases to mediation and laws governing the said reference, whether this power of reference in the hands of the judge is discretionary or mandatory and whether any agreement/ decision out of the mediation process would be binding on the parties. This process will likely uncover issues with the mediation process in India. Family disputes in this context would include matrimonial, child custody and spousal or children maintenance disputes but not testamentary or succession disputes.

Before beginning with the mediation regime in family disputes, it is important to discuss the specific relevance of mediation proceedings in family disputes. A 2016 Report by Vidhi Centre for Legal Policy on the mediation regime in India revealed that 41,503 cases out of a total of 46,000 cases (approx.) of court-referred mediation were family disputes (the report collects this data from the Bombay High Court and Supreme Court). Over a period of five years (2011-2015), more than 25,000 family law cases were referred to mediation. This was almost 80% of the total cases referred to mediation in the said time frame. The references included cases under the Dowry Prohibition Act, maintenance application cases under Section 125 of Code of Criminal Procedure, 1973, PWDV Act, Guardians and Wards Act and other divorce matters.

More family disputes are referred to mediation than any other dispute. Due to the personal nature of the dispute, i.e. the involvement of sentiments and emotions, mere legal, technical and procedural rules do not suffice. The general understanding is that communication between the stakeholders is always the first and most important step in familial disputes. Much responsibility lies with the adjudicator here, and so a mediator who can invest time in understanding the nuances of the dispute to facilitate communication and collaboration between the parties is of utmost importance. It is also important to appreciate that mediation does not require lawyers to be present. Mediation is also a faster process than litigation in India, which is notorious for carrying on for years at end. With this cost and time effectiveness, mediation becomes ideal for family law disputes.

Additionally, the confidentiality element in every mediation proceeding makes it the ideal dispute settlement forum for family matters. This need for confidentiality in mediation has been stressed in multiple cases, including the case of Moti Ram (D) Tr. Lrs. v. Ashok Kumar & Anr., where while stressing on the need for confidentiality, the Courts also stated that the mediators during submission of mediation report to the Court must not disclose transcripts of the proceedings. They only needed to mention whether the mediation was successful or not and what settlement/ compromise was reached to if any. In a country like India, where family matters are considered “inside matters” to the extent that people hesitate from filing cases afraid that it would publicize their disputes, confidentiality promised by mediation proceedings could be a well-needed respite.

Power of Civil Courts for Reference to Mediation

Multiple laws in India, including sections of the Family Courts statute and the Hindu Marriage Act, stress on the need for out of court settlement of disputes. The Courts derive the required legislative backing for reference to mediation through these provisions. The relevant provisions of laws are produced below:

1. Section 89 of Code of Civil Procedure (CPC), 1908

This Section gives the Civil Courts unfettered discretion to refer cases to alternate modes of dispute settlement wherein the judges’ mind “there exist elements of settlement between parties” and in those cases, the Courts could make reference to (a) arbitration under the Arbitration and Conciliation Act 1996, (b) Lok Adalat (c) other institution for judicial settlement or (d) mediation to effect a compromise between the parties. Section 89 CPC embodies the concept of court-referred mediation in India.

2. Section 9 of Family Courts Act, 1984

This section makes it a ‘duty’ of all Family Courts to endeavour towards ‘settlement’ of disputes. This section gives immense power and responsibility to the Family Courts to facilitate settlement, above all. By using terminology such as “assist and persuade” parties into settlement and by giving power even to adjourn proceedings where there is even a possibility of reaching a settlement in any way, the statute encourages reference to mediation proceedings.

3. Section 23 of Hindu Marriage Act, 1955

Section 23 pertains to the grant of divorce decree in matrimonial cases. Per clause (2), before grant of the divorce decree, the Court is required to “make every effort towards reconciliation” between the spouses. Under clause (3) of the Section, for the purpose of the reconciliation, the Court has full discretion to adjourn the case and refer it to a mediator – either appointed by the parties themselves or appointed by the Court.

Based on these above-mentioned provisions in-laws, it is clear that there is nowhere in law a mandatory requirement for reference to mediation, and it is a fully discretionary power to the Court, though highly encouraged under the statute. A court-referred mediation may lead to a compulsory requirement to attend the mediation process; however, the statutes itself do not discuss the binding value of the result of such mediations.

Power of Mediation to bind the Referred Parties

On principle, a mediation proceeding can never be binding unless agreed to by the parties to be. For court-referred mediations, unless a settlement deed or a compromise agreement resulting from a successful mediation is signed by all parties and submitted to the Courts, it will not become binding on the parties. This was also held in the case of Afcons Infrastructure v. Cherian Verkay Construction. It is the Courts recording the settlement/ compromise agreement and passing of decree on the same that makes the result of the mediation binding.

The Proliferation of Special Mediation Courts: Mahila Adalats in India

Before concluding, this piece will discuss a nuanced form of mediation proceeding birthed in India: The Mahila Adalats. These are women’s Courts that are being set-up specifically for the resolution of matrimonial disputes in many parts of India.

With an aim to provide a “safe and unthreatening environment” for the resolution of domestic issues faced by women, these Courts are trying to overcome the low rate of women’s resort to the state machinery for resolution of disputes. This comprises of a set of quasi-judicial bodies (e run by the State) and non-judicial bodies ( set-up by NGOs/ Women’s cooperatives), which allow women to bring forward their concerns. Two elements: all women mediators and mediators coming from the same class, social or cultural background as that of the aggrieved parties, make these Courts structurally unique.

This concept of Mahila Adalats also highlights the significance of mediation proceedings in family law disputes. In a country like India, where marriage is sacrosanct and familial relations are the bedrock of society, many persons do not approach Courts in fear of turning relations bitter and disputes public. Having family members mediate disputes does not work in most cases, especially for women in rural backgrounds, as members of the family are more often than not biased towards the needs of the males of the family. In such cases, one needs to acknowledge the importance of court-referred mediation systems and/or standalone State-run mediation facilities that stand for communication and confidentiality and can be approached at any point.

Conclusion

In conclusion, it is important to highlight the major issue with the mediation process in India as it stands today: the lack of statutory control over the mediation process. At present, there is no statute that governs the role of the mediator and its limits or lays down standards for accreditation of mediators or that illustrates the process of mediation and its elements and conduct thereof (e.g. the difference between joint session and private session and role of both in the process). The statute is necessary to provide for punitive measures in cases of violation of fundamentals of the mediation process and/or misconduct by the mediator, for example, cases where the confidentiality and non-disclosure requirement is violated either by the mediator or the parties. The consistency and reliability of the mediation process is always under question due to this lack of statutory backing to the process. To ensure the efficient and effective use of the mediation process with all the benefits it encapsulates, a statutorily regulated framework that addresses the abovementioned concerns is necessary.