FAMILY DISPUTES

Family is a group of people affiliated by consanguinity, affinity or co-residence. 1 A family

produces and reproduces persons biologically and socially and is the primary economic and
political unit of the society. Contemporary society generally views family as a haven from the
world, supplying absolute fulfillment. The family is considered to encourage intimacy, love and
trust where individuals may escape the competition of dehumanizing forces in modern society
from the rough industrialized world. The family now supplies what is “vitally needed but
missing from other social arrangements”, that is social security.

The Family Courts Act explains family disputes2 as:

1. a suit or proceeding between the parties to a marriage for decree of a nullity marriage
(declaring the marriage to be null and void or, as the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution of marriage;

2. A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial

status of any person;

3. A suit or proceeding between the parties to a marriage with respect to the property of the
parties or of either of them;

4. A suit or proceeding for an order or injunction in circumstances arising out of a marital

relationship;

5. A suit or proceeding for a declaration as to the legitimacy of any person;

6. A suit or proceeding for maintenance;

7. A suit or proceeding in relation to the guardianship of the person or the custody of, or access
to, any minor.

1
Family, available at http://en.wikipedia.org/w/index.php?title=Family&oldid=349111428
2
Section 7 of The Family Courts Act, 1984.
ANALYSIS OF THE STATUS OF ADR IN FAMILY LAW IN INDIA

The duty of making or amending laws is on the legislature but to develop it and to interpret it to
suit the needs and circumstances of the society is the call of the judiciary. Hence, unless and until
the beneficial provisions of the matrimonial legislation promoting and advocating reconciliation
in matrimonial disputes in India is favourably interpreted and strictly implemented by the courts,
the letter of law may be an illusory mirage which remains on the statute book only. It is therefore
the solemn duty of the matrimonial courts in India to ensure that the mandatory settlement efforts
are actually put into practice and parties are encouraged to actually utilize them for out-of-court
settlements. Thus, there is a heavy burden on the courts to discharge this solemn duty failing
which it will neither be possible nor useful to enforce reconciliatory measure in matrimonial
disputes in the Indian jurisdiction. Accordingly, it would be most useful to cite and quote some
recent prominent verdicts of superior Indian courts which have stressed and highlighted the dire
necessity of the beneficial provisions of Indian legislation which provide mandatory
reconciliation procedures.

A novel question came up for decision before the High Court of Kerala in Bini v
K.V.Sundaran3- i.e., whether conciliation is mandatory after the introduction of the Family
Courts Act, 1984, even on the excepted grounds of conversion to another religion, renunciation
of the world, mental disorder, venereal diseases and leprosy. Calling the Family Courts Act,
1984 a special statute, and its provisions to make attempt at reconciliation mandatory at the first
instance, the High Court held:

The parties can disagree on matters of faith and still lead a happy marital life if they could be
convinced that matters of faith should not stand in the way of union of hearts. Thus though under
the Hindu Marriage Act, 1955, no endeavor for reconciliation need be made in a petition for
divorce on the ground of conversion to another religion, or other grounds excepted under Section
13 (1) of the Hindu Marriage Act, 1955 or on similar or other grounds available under any other
law also, after the introduction of the Family Courts Act, 1984, the Family Court is bound to
make an endeavor for reconciliation and settlement. The requirement is mandatory. That is the
conceptual change brought out by the Family Courts Act, 1984 which is a special statute.

3
AIR 2008 Kerala 84.
The Court further said that “the primary object is to promote and preserve the sacred union of
parties to marriage. Only if the attempts for reconciliation are not fruitful, the further attempt on
agreement on disagreement may be made by way of settlement.”

MEDIATION AS AN ADR MECHANISM

Litigation does not always lead to a satisfactory result. It is expensive in terms of time and
money.4Its adversarial nature does not change the mindset of the parties and ends up in
bitterness. Alternative dispute resolution systems are not only cost and time effective; they
preserve the relationship between the parties by encouraging communication and collaboration.

One of the plethora of platforms provided by the ADR system for dispute resolution is the
mechanism of Mediation. Mediation is a process of resolving disputes between parties outside
the court of law. Mediation is defined in Black’s Law Dictionary as “a private, informal dispute
resolution process in which a neutral third party, the mediator, helps disputing parties to reach an
agreement.” Family dispute mediation is a process in which a mediator, an impartial third party,
facilitates the resolution of family disputes by promoting the participants’ voluntary agreement.

Mediation is a settlement process in which either the parties to the disputes or Courts appoint a
mediator who helps both the parties on reaching an amicable solution or agreement. Mediator is
a neutral third person who helps parties to compromise by facilitating discussion between the
parties: directly, by helping them in communication, by assisting parties in identifying issues,
reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating
options to solve the dispute and emphasizing that it is the parties own responsibility for making
decision which affects them; without imposing any terms of settlement on either party. 5
Mediation is a speedy settlement and non-adversarial approach of dispute resolution.

Therefore, mediation is a multi-disciplinary strategy to deal with a plethora of civil disputes

including the family disputes. Incase of family dispute mediation, informal and simple rules of

4
“The formal dispute resolution process is procedure oriented and therefore consumes a lot of time and money.
ADR offers flexibility of procedure and thus saves time and money.”
5
[The Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003]
procedures and gender justice are supposed to be the cornerstones of the philosophy of the
Family Courts.6 The whole structure of family courts rests on the twin pillars of counselling and
dispute resolution. The counsellors are required to not only provide counselling but to bring
about mutual settlement whenever feasible. In this regard the family dispute mediation takes the
shape and form of conciliation proceedings.

In 1999, the Civil Procedure Code Amendment of 1999 again inserted Section 89 (which was
repealed earlier) providing for reference of cases pending in the courts to Alternative Dispute
Resolution methods, including the process of mediation. This amendment was enforced on July
2, 2002.

MEDIATION IN FAMILY DISPUTE RESOLUTION

Maintenance of peace and harmony is the paramount consideration in resolving the family
disputes. Conciliation and mediation are old institutions and indeed they are deeply rooted in
social tradition of many societies, particularly in Asian culture and values. In India, family
disputes were resolved by the elders of the family who acted as conciliators or mediators. Even
today, elders of the family and in villages, the elder persons of the village have such a role.
Panchayats also perform a similar function, and are preferred by villagers over courts due to their
easy accessibility and prompt dispute resolution.7 The philosophy behind ADR is amicable
dispute resolution and mediation is one such process that provides a space to the parties to sit
down and focus on what they really want, rather than think what they need to seek or what the
law will let them fight for.

Family disputes, because of their unique nature are best resolved through mediation. A family
dispute is not just a matter of law and facts but it is also about the familial sentiments of the
parties to the dispute. Mediation focuses on non-coercive and consensual process to resolve such
family disputes between the parties. This method diminishes the probability and possibilities of
estranged relationships which might come out as a result in case the parties choose to go for
litigation. Mediation hence has been widely accepted for resolving family disputes not only in
India, but also in many foreign countries like United States, Canada and England.

6
Jamwal, N., “Have Family Courts lived up to expectations”
7
Dr. M.K., J., “Conciliation and Mediation”, available at http://delhimediationcentre.gov.in/articles.htm.
The most significant feature of this process is that the disputants themselves determine and reach
to an agreement rather than some third party, unknown to both of them, imposing a decision that
might not even be acceptable to both or any one of the parties. Another important feature of
mediation is that the mediators use appropriate skills in order to improve the dialogue between
the disputants thus aiming to help the parties reach an agreement favourable to both of them.

THE ROLE OF THE MEDIATOR

It is the role of the mediator to elicit the facts from the point of view of both the contending
parties and he would reformulate them in a clearer and expressed manner to let the parties focus
on the actual troublesome areas of conflict, thus giving an opportunity to the parties to come up
with creative solutions which might not be possible in a third party imposed legal solution.The
mediator can also talk to the contending parties individually, without the other party being in the
discussion so that the parties can clearly communicate to the mediator the areas of agreement and
disagreement very clearly. He must make sure that he does not, by any chance overlook the
emotional aspect attached to the conflicts causing that particular dispute in question.

The mediator has to play the role of a counsellor or a conciliator in order to lead the parties to an
amicably acceptable solution to the dispute/s which would bring about lasting peace between the
disputants.Thefore the overall job of a mediator would be to continuously bridge the gaps in the
proposed solutions from both the sides in order to arrive at a consensus leading to the satisfaction
of both the parties to the dispute. The process of mediation might need 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 also thecircumstances of the dispute.

According to Justice Manju Goel, the strategies to be adopted by the counsellor or the mediator
in resolving family disputes are:[4]

 Probing of facts;
 Identifying the real cause of dispute;
 Exploration of possibilities of reconciliation or divorce;
 Bring the parties to an agreed solution; and
 Shaping the solution in the legal formats.
EFFECTIVENESS OF FAMILY DISPUTE MEDIATION:
Mediation is a very effective method of family dispute resolution. It is more attractive than
litigation because it empowers the parties to devise an agreement which meets their specific
needs.8It empowers the parties to choose alternative options which a court may not offer as a
remedy, for example separated couples arguing over custody of their children can formulate their
own unique parenting plans. Further, the family mediator assists communication, encourages
understanding, and focuses the participants on their individual and common interests. The
mediator works with the participants to explore options, make decisions, and reach their own
agreements, thus helping them to gain a better understanding of their own needs and interests and
of the needs and interests of other parties involved.

The emphasis in mediation is to find out a workable solution unlike adversarial system which
focuses on who is right and who is wrong and generally ends up in bitterness, thereby
diversifying the capacity for resolving conflicts in society.

More number of 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. 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[2]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.[3]

 Additionally, the confidentiality element in every mediation proceeding makes it the most 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.[4], where while stressing on the need for confidentiality, the courts also stated that the

8
Section 73 of The Arbitration and Conciliation Act, 1996
 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 an 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.

THE LEGAL PROVISIONS AFFECTING MEDIATION IN FAMILY DISPUTES

 Multiple laws in India, stress on the need for out of court settlement of disputes. References to
mediation/conciliation in family dispute resolution can be found in the Family Courts Act, 1984,
Civil Procedure Code, Hindu Marriage Act and the Legal Services Authorities Act, 1987 that
recognises and gives a special status to Lok Adalats that have been very effective in mediating
family disputes. The Family Courts Act was enacted with a view to promote conciliation in, and
secure speedy settlement of, disputes relating to marriage and family affairs and for matters
connected therewith.9The 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

Section 89 of the Civil Procedure Code (Amendment) Act, 1999 10, directs the courts to
identify cases where an amicable settlement is possible, formulate the terms of such a settlement
and invite the observations thereon of the parties to the dispute. Where the Court comes to the
conclusion that mediation is the appropriate mode of settlement, it may itself act as a mediator
and “shall effect a compromise between the parties”.11 The language of this section is mandatory
in nature and it makes mediation compulsory. This Section gives the civil courts unfettered

9
Preamble, The Family Courts Act, 1984.
10
Where at the first hearing of the suit the Court ascertains from each party or the counsel whether the parties
admit or deny the allegations of fact as are made in the plaint or the written statement. After referring to the
admissions and denials, the Court shall direct the parties to the suit to opt for either mode of the ADR as specified
in Section 89 (1) i.e. Arbitration and Conciliation, Lok Adalat or Mediation.”
11
“Section 89 lays down that where it appears to the Court that there exists an element of settlement, which may
be acceptable to the parties; the Court shall formulate the terms of settlement and give time to the parties for
their comments.
 discretion to refer cases to alternate modes of dispute settlement where in 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

The Family Court Act, 1984 was enacted to provide for the establishment of Family Courts with
a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage
and family affairs and for matter connected therewith by adopting an approach radically different
from the ordinary civil proceedings . Section 9 of the Family Courts Act, 1984 lays down the
duty of the family Court to assist and persuade the parties, in arriving at a settlement in respect of
subject matter. The Family Court has also been conferred with the power to adjourn the
proceedings for any reasonable period to enable attempts to be made to effect settlement if there
is a reasonable possibility.

Section 9 (1) of the Family Courts Act states that “In every suit or proceeding, endeavour shall
be made by Family Court in the first instance, where it is possible to do so consistent with the
nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement
in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court
may, subject to any rules made by the High Court, follow such procedure as it may deem fit.”

While Section 9(2) directs the family court to adjourn the proceedings if it appears that there is a
reasonable possibility of settlement between the parties for such period as it thinks fit is
necessary for taking the required measures for bringing about the settlement. These provisions
however do not make mediation/conciliation compulsory.

This section makes it a ‘duty’ of all Family Courts to endeavor 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 to even 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 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 case and refer it to mediator – either appointed by the parties
themselves or appointed by the court.

Based on these above-mentioned 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 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 result of such mediations.

CASELAW ENCOURAGING MEDIATION IN FAMILY DISPUTES

 Ramgopal and Anr. vs. State of M.P.[8]

In this case, certain cases which were non-compoundable in 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 shoulders of the Judiciary.

 B.S. Joshi & Ors. vs. State of Haryana & Anr.[9]

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 vested in the court according to Section 482 of Criminal Procedure
Code. It was an appeal petition to the Supreme Court. The wife had lodged an FIR against the
husband and later, according to her, their relationship was fine and the FIR was registered
without thinking and impulsively. According to the Supreme Court, courts should encourage
reconciliation especially in the matrimonial disputes of such kind.

 Afcons Infrastructure Ltd. vs. Varkey Construction Co. Pvt. Ltd.[10]

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

 Manas Acharya vs. State & Anr Case[11]

In this case the court issued an even more pro mediation approach wherein it highlighted that the
settlement obtained in mediation is legal and valid and the decision taken in the mediation
process is binding on both the parties.

 Dr. Jaya Sagade vs. The State of Maharashtra[12]

Here the circular which was 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 the parties can go for mediation.

 Salem Advocates Bar Association vs. Union of India[13]

The original case was Salem Advocates Bar Association, Tamil Nadu. v. Union of India[14]
and the abovementioned case was just an aftermath of this case. It intends to reduce burden from
the judiciary by reducing number of suits filed in the court every year. This case looks upon a
speedy trial and administration of justice. Various rules and regulations were drafted for the
smooth functioning of alternative dispute resolution by the committee set up by the court.

MATRIMONIAL MEDIATION:

In the Indian judicial system there is a backlog of nearly 27 million pending cases out of which,
approximately 55,000 comprise of disputes relating to divorce.[1] This impediment in obtaining
timely justice has resulted in alternate dispute resolution mechanisms such as negotiation,
mediation, arbitration and conciliation gaining popularity due to their speedy nature of settling
disputes. These forums provide a platform for parties to seek relief without involving litigation,
thus literally “outside a courtroom”.Mediation has emerged as the most widely accepted dispute
resolution mechanism for settling matrimonial disputes.
Black Law Dictionary defines divorce as a complete legal dissolution of a marriage. divorce is
viewed as the legal termination of said marriage. Divorce is a potential minefield in terms of the
impact it can have on the parties, their children and their extended families. For children, the
divorce of their parents can be devastating, particularly if the intensity and duration of parental
conflict is high.Although the legal system is equipped to deal with the legal problems that the
couple faces when divorcing, it does not address nor it is equipped to deal with the social and
emotional issues that confront the couple. Mediation on the other hand provides for dealing with
such issues. Mediation cuts the price and the long process of litigation. It is a confidential and
ethical process and does not harm the sentiments of either party. The mediation proceedings aim
to minimise the possibly traumatic fallout of a divorce.

Also the a child-centric heterosexual nature of marriage institution highlights the importance of
the family laws and Courts that mostly encourage in matrimonial disputes for reconciliation and
settlement by amicable agreement instead of litigating in Courts.12 

Section 9 of the Family Court Act, makes is it mandatory to settle a matrimonial dispute in
relation to maintenance, child custody, divorces, etc., through the process of mediation. The
family court can take the help of the counselors if needed for resolving disputes. Therefore,
Matrimonial mediation can take two forms;

Mediation through court- Section 89 of the Code of Civil Procedure, 1908 deals with the
mediation for pending cases in the court which are referred by the court itself.

Private mediation- Private service is given by qualified mediators. Free service is provided to

the court or public members to resolve their disputes regarding any matter. Private Mediation is
used to resolve the disputes pending in court and pre-litigation disputes.

In the case of K. Srinivas Rao vs. D.A.Deepa [2], the apex court held that mediation is a must
before a divorce. When any case occurs under Section 489A of IPC, the apex court directs the
criminal courts not to deal with this complaint unless the matter is dealt by the mediation centers
but in few cases where the cruelty amounts to be a very rigorous and a dangerous one, the
criminal courts can take up the case without referring it to the meditation centers.  Further, it has
12
G. V RaovL. H. V. Prasad, (2000) 3 SCC 693
been held that all the mediation centers should set up their own personal litigation clinics so that
the matrimonial disputes can be resolved under this without going to court.

There are several advantages attached to mediation of matrimonial affairs such as confidentiality,
cost effectiveness, informal procedures, power of control, full freedom of parties to reject the
outcome, mutuality, etc. The most attractive and indispensable feature is that it follows the
principle of timely justice.

MEDIATION IN DOMESTIC VIOLENCE CASES;

Though, mediation has emerged as the most widely accepted dispute resolution mechanism for
settling matrimonial disputes. The problem arises when these include cases of domestic violence.
While using mediation to resolve disputes of such nature, there are two opposing ideologies that
exist in society. The advocates of mediation hold mediation to be a favourable mechanism as it
safeguards family relationships; more specifically children from having to experience the
severities of the traumatic process ordinarily attached to a typical divorce and also provide
speedy justice. Whereas the critics of mediation hold mediation to be ineffective as the
wrongdoer escapes without being punished through the State’s orderly penal apparatus.

With reference to domestic violence cases, Section 12 of the Protection of Women from
Domestic Violence Act, 2005 clearly lays down that a magistrate must dispose of a case under
this Act within 60 days. However, this provision is rarely complied with. It is observed that the
cases of such nature are rarely wrapped up in the 60 days period unless parties reach a
compromise. However, Section 89 CPC only deals with “civil” matters. Thus, criminal matters
are removed from the purview of mediation. This aspect leads to doubts as to the legal sanction
of mediation in domestic violence cases. The judicial interpretation has however been partially
favourable to mediation in domestic violence cases.
Section 498-A of the Penal Code, 1860 (IPC) deals with matters of domestic violence. Under
Section 320 of the Code of Criminal Procedure (CrPC) this is a non-compoundable offence
where no compromise is allowed to be made. However, in India courts have time and again
referred 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:
In Mohd. Mushtaq Ahmad v. State[2], the wife filed a divorce petition alongside an FIR against
the husband under Section 498A IPC after disputes arose between the couple subsequent to birth
of a girl child. The Karnataka High Court directed the parties to mediation under Section 89
CPC. The matter was settled amicably through mediation after which the wife decided to quash
the FIR. The Court allowed this stating, “The court in exercise of its inherent powers can quash
the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of
justice.”
In Gurudath K. v. State of Karnataka[3], the facts are identical to the case above. Here 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 power of quashing of FIR or criminal complaint in respect of such
offences.” Thus, the court allowed for the offences to be compounded on coming to the
conclusion that the wife was under no threat or coercion for the same.
The intention of the court in adopting above approach is to safeguard family relationships and
provide speedy justice.However the demerit in this ideology lies in the fact that, the accused are
less apprehensive of being convicted in cases of domestic violence. Mediation in this case might
be prejudicial to the victim as the wrongdoer escapes without being punished.
In K. Srinivas Rao v. D.A. Deepa[5], the Court held:
“44. … though offence punishable under Section 498-A IPC are not compoundable, in
appropriate cases if the parties are willing and if it appears to the criminal court that there exist
elements of settlement, it should direct 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 mediation process to get out of clutches of the law…. If there is settlement,
the parties will be saved from the trials and tribulations of a criminal case and that will reduce
the burden on the courts which will be in the larger public interest”.
It is quite evident from this holding that courts have not tuned a blind eye toward the fact that
this offence is non-compoundable. The Court’s actions are done in good faith to save parties
from the hectic court procedures. The Court has used the word “appropriate cases” in the first
line, which means that all cases of such nature will not be referred to mediation. It is only those
ones that the court deems to be appropriate to be sent for mediation.
There should be no strict guidelines for which cases are to be referred to mediation.What is
really 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. Domestic violence cases cannot be decided
through precedents unless the facts appear to be identical. Each case is of different magnitude
and must be judged by scrutinising the facts of the case and discomfort caused to the victim
carefully. The Indian courts are headed in the right direction in dealing with cases of this nature

FAMILY PROPERTY/ ESTATE DISPUTE MEDIATION

Disputes between family members over family property, estates, trusts and businesses; brothers
and sisters over partnership property; issues of inheritance or partition etc form the crux of such
matters. Once the patriarch’s or matriarch’s control ends, the family members are often left in a
position of ambiguity about their rightful role. Disputes arise aboubt the said rights and liabilities
in that regard.

The tremendous financial cost of litigation is only one downside of an intrafamily lawsuit. Court
pleadings and proceedings are public. One of the principal advantages of private mediation over
litigation of sibling and intergenerational family disputes is the confidentiality provided in
keeping family fights from the public eye. The light of publicity often cements positions and
makes compromise more difficult. There are, many other advantages of working out a settlement
among warring family factions, including reconciling differences and healing. Courts are limited
in the remedies they can impose and framing family disputes in legal terms inhibits the parties’
ability to invent or accept creative solutions. Litigation rarely heals differences or promotes
understanding.

Family property and financial disputes, whether presented in the context of a suit for partition, a
corporate fight, or a probate or trust case, are matters of both facts and the law. They present
challenges for how emotions and family dynamics are to be weighed against and balanced with
legal rights and obligations. A judicial decision or legal mandate may not address the underlying
family conflict or fully resolve the dispute. The desire to resolve the conflict and preserve the
family relationship is deeply embedded. In most family disputes there is a dissonance between
wanting to win by being proven right and desiring to make peace within the family. The role of
the mediator is to help the peace motivation prevail.

The participants in a family property or money dispute are more likely to reach a satisfactory
agreement by talking and exploring options with the help of a mediator than they are by going
through a judicial procedure in which a decision is imposed on them, whether by judicial decree
or by an outcome negotiated by their lawyers.. In mediation blame and anger can be lessened
through understanding, and the parties are encouraged to develop a commitment to the process
and to the agreement that they structure. Mediation is a proven way to avoid the long-term
adverse consequences of litigating family property, inheritance, and trust disputes.

PROLIFERATION OF SPECIAL MEDIATION COURTS: MAHILA ADALATS IN

INDIA

The Mahila Adalats are women’s courts that are being set-up specifically for resolution of
matrimonial disputes in many parts of India.With an aim to provide “safe and unthreatening
environment” for resolution of domestic issues faced by women[6], 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 (where run by the State) and non-judicial bodies
(where 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[7].

 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 doesn’t work in most cases,
especially for women in rural backgrounds as members of the family are more often than not
biased towards 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.
ISSUES WITH THE CURRENT MEDIATION REGIME IN INDIA: LACK OF
LEGISLATIVE FRAMEWORK GOVERNING THE MEDIATION PROCESS
 It is important to highlight the major issue with the mediation process in India as it stands today:
the lack of a statutory control over the mediation process. At present, there is no statute that
governs what exactly is the role of the mediator and it’s 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). 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 ever under question due to this
lack of statutory backing to the process.[8]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.

Mediation is a collaborative, party controlled, confidential, informed, impartial, balanced and

safe, self-responsible and satisfying alternative dispute resolution mechanism. It offers a unique
and dynamic resolution of disputes and preserves relationships. It is time to introduce
compulsory mediation in family dispute resolution as it will not only reduce the backlog of cases
but will also provide substantial justice to the parties particularly in the Indian context where the
family structure is such that members of a family are too interdependent.

CONCLUSION

The philosophy of alternate dispute resolution systems is well made out by Abraham Lincoln’s
famous words: “discourage litigation, persuade your neighbours to compromise whenever you
can. Point out to them how the normal winner is often a loser in fees, expense, cost and time.”
These words spell out grim realty and truth.

Litigation in respect of any matter concerning the family, whether divorce, maintenance and
alimony or custody, trial of juvenile offenders or any other matrimonial cause should not be
viewed in terms of failure or success of legal action but as a social therapeutic problem. It should
not be viewed as a prestigious dispute in which parties and their counsels are engaged in winning
or defeating, but as a societal problem needing resolution. The amicable settlement of family
conflict requires special procedures designed to help people in conflict and in trouble, to
reconcile their differences, and where necessary to obtain professional assistance. Family
disputes need to be seen with a humanitarian approach and hence attempts should be made to
reconcile the differences so as to not disrupt the family structure. Adjudication of family disputes
is an entirely different matter than conventional civil or criminal proceedings. It is a different
culture and has a different jurisprudence altogether.13

The whole society feels the reverberations of a family dispute in society outside the home.
Whereas there already exist some provisions for conduct of arbitration, conciliation and Lok
Adalat in different statutes, the need for a framework to regulate the ADR process as a whole and
mediation in particular has been sought to be fulfilled by the Supreme Court of India. It has done
so by providing the final version of the Model Rules of ADR and the Model Rules of Mediation,
both framed by the Law Commission of India, in its Orders passed in the case of Salem Bar
Association Vs Union of India14with a direction that all high courts should adopt these with such
modifications as they may consider necessary.’

Therefore, the dire pressing need of the day in the current social milieu where 30 million Indians
now live outside India is to create a law and infrastructural machinery for ADR mechanisms in
resolving marriages solemnized in India but which have been fractured or broken abroad.

For the lack of resolution, they lead to inter-parental child removal custody conflicts, disputes of
maintenance and differences over settlement of matrimonial property. These cross border marital
conflicts should not stem into or branch out into other ancillary issues multiplying the problem.
This, in my opinion ought to be the focus of the legislative intent today in creating, harmonizing
and balancing the societal structure of Indians, non-resident Indians and all those who form
relationships with them to build families abroad. ADR needs to be developed in a big way for
resolving limping unions.

13
Law of Marriage & Divorce; Paras Diwan, (preface to the 1st Edition) 5th Edition.
14
(2003 (1) SCC 49)