Maintenance 0f peace and harm0ny is the param0unt c0nsiderati0n in res0lving the family

disputes. C0nciliati0n and mediati0n are 0ld instituti0ns and indeed they are deeply r00ted in
s0cial traditi0n 0f many s0cieties, particularly in Asian culture and values. In India, family
disputes were res0lved by the elders 0f the family wh0 acted as c0nciliat0rs 0r mediat0rs. Even
t0day, elders 0f the family and in villages, the elder pers0ns 0f the village have such a r0le.
Panchayats als0 perf0rm a similar functi0n, and are preferred by villagers 0ver c0urts due t0
their easy accessibility and pr0mpt dispute res0luti0n.1 The phil0s0phy behind ADR is amicable
dispute res0luti0n and mediati0n is 0ne such pr0cess that pr0vides a space t0 the parties t0 sit
d0wn and f0cus 0n what they really want, rather than think what they need t 0 seek 0r what the
law will let them fight f0r.

Family disputes, because 0f their unique nature are best res0lved thr0ugh mediati0n. A family
dispute is n0t just a matter 0f law and facts but it is als0 ab0ut the familial sentiments 0f the
parties t0 the dispute. Mediati0n f0cuses 0n n0n-c0ercive and c0nsensual pr0cess t0 res0lve such
family disputes between the parties. This meth 0d diminishes the pr0bability and p0ssibilities 0f
estranged relati0nships which might c0me 0ut as a result in case the parties ch00se t0 g0 f0r
litigati0n. Mediati0n hence has been widely accepted f0r res0lving family disputes n0t 0nly in
India, but als0 in many f0reign c0untries like United States, Canada and England.

The m0st significant feature 0f this pr0cess is that the disputants themselves determine and reach
t0 an agreement rather than s0me third party, unkn0wn t0 b0th 0f them, imp0sing a decisi0n that
might n0t even be acceptable t0 b0th 0r any 0ne 0f the parties. An0ther imp0rtant feature 0f
mediati0n is that the mediat0rs use appr0priate skills in 0rder t0 impr0ve the dial0gue between
the disputants thus aiming t0 help the parties reach an agreement fav0urable t0 b0th 0f them.

MEDIATOR AND HIS FUNCTIONS IN FAMILY DISPUTE MEDIATION

It is the r0le 0f the mediat0r t0 elicit the facts fr0m the p0int 0f view 0f b0th the c0ntending
parties and he w0uld ref0rmulate them in a clearer and expressed manner t 0 let the parties f0cus
0n the actual tr0ubles0me areas 0f c0nflict, thus giving an 0pp0rtunity t0 the parties t0 c0me up
with creative s0luti0ns which might n0t be p0ssible in a third party imp0sed legal s0luti0n.The
mediat0r can als0 talk t0 the c0ntending parties individually, with0ut the 0ther party being in the
1
discussi0n s0 that the parties can clearly c0mmunicate t0 the mediat0r the areas 0f agreement
and disagreement very clearly.

There the mediat0r has t0 play the r0le 0f a c0unsel0r 0r a c0nciliat0r in 0rder t0 lead the parties
t0 an amicably acceptable s0luti0n t0 the dispute/s which w0uld bring ab0ut lasting peace
between the disputants.2 Theref0re the 0verall j0b 0f a mediat0r w0uld be t0 c0ntinu0usly bridge
the gaps in the pr0p0sed s0luti0ns fr0m b0th the sides in 0rder t0 arrive at a c0nsensus leading t0
the satisfacti0n 0f b0th the parties t0 the dispute.

Acc0rding t0 Justice Manju G0el, the strategies t0 be ad0pted by the c0unsel0r 0r the mediat0r
in res0lving family disputes are3:

 Pr0bing 0f facts;
 Identifying the real cause 0f dispute;
 Expl0rati0n 0f p0ssibilities 0f rec0nciliati0n 0r div0rce;
 Bring the parties t0 an agreed s0luti0n; and
 Shaping the s0luti0n in the legal f0rmats.

In the case Re: In The Matter of Matrimonial ... vs State of U.P. & others 4,the c0urt while
emphasizing the necessity 0f training t0 mediat0rs has end0rse the 0pini0n that training f0r
mediat0rs is a sine qua n0n f0r effective mediati0n. Acc0rding t0 the c0urt, the first requirement
f0r successful mediati0n is the patience 0n the part 0f the mediat0r, and his willingness t0 give
sufficient time t0 the c0ntesting parties and especially t0 the wife t0 express her b0ttled up
grievances. Thereafter, in a disinterested manner, the mediat 0r sh0uld enc0urage the parties t0
c0me up with s0luti0ns, giving useful suggesti0ns f0r bringing ab0ut rec0nciliati0n, as the
mediat0r cann0t imp0se his s0luti0n 0n the parties.

In the words of the honorable bench, “We think training is necessary because the responses to
our queries from the subordinate district courts reveal the poor success rate in the cases

2
An Intr0ducti0n t0 Alternative Dispute Res0luti0n System, Anupam Kurlwal, 2014, 2nd Editi0n.

3
Justice Manju G0el, Successful Mediati0n in Matrim0nial Disputes Appr0aches, Res0urces, Strategies &
Management
4
Criminal misc. WP N0. - 3322 0f 2010
referred by the High Court or where the concerned subordinate court has itself initiated the
process of mediation. By contrast the success rate at the Mediation Centre in the Allahabad
High Court, which has independent trained mediators is much higher”. The guidelines with
regard to the trained mediators have been spelt out by the Court because of the specific request
of the officials and lawyers present to spell out the terms of the same, as guidance for the State
government (esp. the home department), the Legal Services Authority and the police for issuing
appropriate circulars or government orders.

ADVANTAGES OF FAMILY DISPUTE MEDIATION

Mediation is a very effective meth od of family dispute resolution. It is more attractive than
litigation because it empowers the parties to devise an agreement which meets their specific
needs.5 It 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. The emphasis in mediati on 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 collaboration6 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 disputes7

5
Secti0n 73 0f The Arbitrati0n and C0nciliati0n Act, 1996

6
Vini Singh, ‘C0mpuls0ry Mediati0n f0r Family Disputes?’, Indian Institute 0f Arbitrati0n and Mediati0n,
<https://www.arbitrati0nindia.c0m/pdf/tia_2_9.pdf>

7
Ibid.
 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.

In the case of PERRY KANSAGRA VS. SMRITI MADAN KANSAGRA8  which involved the
dispute of child custody and visitation rights, while dealing with the question of extent of
mediators discreationary power, the court has clearly explained abut two aspects;

one, when the Court didn’t authorize the mediator to exercise power that is vested statutorily with
it, the mediator is barred to do the same. The discretion to involve or not to involve a counsellor is
the Court’s and is non delegable. The referral order doesn’t permit the mediator to involve
“others” cannot as such discretion is solely vested with the Court.

Second, the issue of confidentiality is to be examined because the mediator furnished two reports-
to the Court, in this case. A mediator’s position is unique; undoubtedly she (or he) has
professional training and competence to handle issues that involve intense and bitter struggle over
matrimonial issues, properties, shared household, custody, (temporary or permanent) and in
commercial matters, issues that have monetary and financial impacts. In all cases, parties express
their fears, their expectations and their dearly held positions on the strength of the confidence that
they repose in the mediator and the mediation process- both of which are reinforced by the
absolute cloak of confidentiality.

The court however held that there is no bar on taking into consideration the “councellors” report
on various crucial issues like individual and familial dynamics especially t o decide on sensitive
issues like child custody and the visitation rights. Such action cannot be considered as intrusion to
the confidentiality.

In the case of Moti Ram (D) Tr. Lrs. v. Ashok Kumar & Anr.9, where while stressing on the
need for confidentiality, the courts also stated that the mediat ors 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
8
SLP(C)N0.9267 0f 2018
9
[2010] 14 (ADDL.) SCR 809
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.