MATRIMONIAL MEDIATION

In the Indian judicial system there is a backl og of nearly 27 million pending cases out of which,
approximately 55,ooo comprise of disputes relating to divorce.1 This impediment in obtaining
timely justice has resulted in alternate dispute res olution 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 m ost 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 terminati on 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 durati on 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 minimize the possibly traumatic fallout of a divorce.

Also the 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.2 

In G.V. Rao v L.H.V. Prasad,3the court has strongly advocated mediation in matrimonial dispute
resolution stating that there has been an outburst of matrimonial disputes in recent times. The

1
Pandey, V. (2010), 55,000 c0uples waiting f0r div0rce in India/Latest News & Updates at Daily News and
Analysis, available at <http://www.dnaindia.c0m/india/rep0rt-55000-c0uples-waiting-f0r-div0rce-in-india-
1400514> (accessed 0n 29th-3-2020).

2
G. V Ra0vL. H. V. Prasad, (2000) 3 SCC 693
3
AIR 2000 SC 2474
court opined that marriage is a sacred ceremony but little matrimonial skirmishes suddenly erupt
which often assume serious proportions resulting in commission of heinous crimes in which
elders of the family are also involved with the result that those who could have counselled and
brought about rapprochement are rendered helpless on their being arrayed as accused in the
criminal case. Matrimonial litigation should hence not be encouraged so that the parties may
ponder over their defaults and terminate their disputes amicably by mutual agreement.

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 mediat ors. 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.

However, any such mediation proceeding in general and mediation in matrimonial disputes in
particular, 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 t o the courts, it will not become binding on the
parties. This was also held in the case of Afcons Infrastructure v.Cherian Verkay
Construction4.It is the courts recording the settlement/ compromise agreement and passing of

decree on the same that makes the result of the mediation binding.

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.
4
(2003 (1) SCC 49)
FAMILY PROPERTY 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 imp ose 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 c ontext 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 diss onance 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.

In the case, Pokhar Singh v. Mt Dulari Kunwar5, a family arrangement has been defined as "a
transaction between members of the same family which is for the benefit of the family generally,
as, for example, one which tends to the preservation of the family property, to the peace or
security of the family and the avoidance of family disputes and litigation or to the saving of the
honour of the family.” the judgment has als o emphasized how such compromises and settlements
often turn out to be effective in both avoiding the burdensome litigation and protecting the
interests and sentiments of the family members

5
. AIR 1930 All 687