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
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.1 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.

1
An Intr0ducti0n t0 Alternative Dispute Res0luti0n System, Anupam Kurlwal, 2014, 2nd Editi0n.
Acc0rding t0 Justice Manju G0el, the strategies t0 be ad0pted by the c0unsel0r 0r the mediat0r
in res0lving family disputes are2:

 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 3,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
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.

2
Justice Manju G0el, Successful Mediati0n in Matrim0nial Disputes Appr0aches, Res0urces, Strategies &
Management
3
Criminal misc. WP N0. - 3322 0f 2010