ABSTRACT

India is being one of the fastest developing countries in the world, has still succeeded to protect
and till date enjoy the culture that has been followed by their ascendants in earlier decades. India
is a country that strongly believes in the oneness of the family, that the family who stays together
and grows no matter whatever the hurdles may arise. Likewise there are some issues that may
arise in a family it may be related to property or marriage such disputes cannot be solved within
the house as it may complicate the dispute even more. To solve such issues the courts were made
so that such disputes can be sorted out without any adverse effects. But the proceedings
happening in courts used to take a very long time so people started switching to ADR mechanism
that is Alternative Dispute Resolution mechanism that provides a pathway for the people to sort
their dispute in a very fast and simple manner. There are various types of ADR mechanism like
Arbitration, conciliation, mediation and lok adalats. Though the ADR mechanism is no a new
ways to the people as in earlier times there were a lot of panchayats situated in each and every
village to solve the disputes related to family. The mediation is said to be most apt way to sort
out a family dispute as in this process it’s the parties that will put out their own expectations and
it’s the parties themselves they negotiate as required and come to a similar terms so it is a win –
win situation for the parties to the disputes Here we will be discussing about how effective is
Mediation as an dispute resolution method in various place in India.

KEYWORDS: Litigation, agreement, conciliation, privacy, disputes.

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CONTENT Page No.
1. CHAPTER – I…………………………………………………………………………4
1.10 Introduction……………………………………………………………………..4
1.11 Background of the study………………………………………………………..5
1.12 Research Problem ………………….…………………………………………..6
1.13 Review of Literature……………………………………………………………6
1.14 Research Question……………………………………………………………...6
1.15 Research Objective……………………………………………………………..6
1.16 Hypothesis……………………………………………………………………...6
1.17 Scope and Limitation…………………………………………………………...7
1.18 Methodology……………………………………………………………………7
2. CHAPTER-II……………………………………………………………………….....8
2.10 Whether mediation more effective than filing a litigation in case of any dispute in
marriage…………………………………………………………………………8
2.11 Law and procedure of Mediation……………………………………………….9
2.12 Suggestion……………………………………………………………………...12
2.13 Conclusion……………………………………………………………………...13

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 CHAPTER- 1

1.10 INTRODUCTION

Family is also known as social institution of the society; it also plays a very vital role in peaceful
leading of a human being’s life. Family is known as the building block of life, with the help and
support of family one is believed to conquer any dispute or hurdle in life. India being a country
that is famous for always remembering and prioritizing its culture and beliefs, has always valued
family more than anything else and Indian families are always known for the way they carry
their joint family seamlessly without any internal disputes and in any case if dispute or
disagreement arises then the way they handle the disputes are also have always been talk of the
town. Indian have this magnificent way of solving the issues that occur in the family and the
potential of solving such issues are so much well-defined, systematic and well-organized that if
any dispute arises then the families come together and sort out issue in such a way that the
dispute will be resolved and there won’t be any further issues or any kind of hatred towards each
other. In India, there is no way the dispute will be left unattended and the people will stop talking
or maintain any relationship due to these disputes.

Here in the earlier times, in case of any disputes in family the eldest of the family used to sit
together and sort out the issue by giving proper reasons and solutions. This is how any internal
issue that is any problem occurring in a single family used to be resolved. In case there was any
dispute between two different people of the same village then the matter was taken care by the
elder people residing in that village or also known as the Panchayat that would be led by Sar
Panch that would be the most wisest of the whole village and he would act as the adjudicating
authority with the help of the other members of panchayat they would come to a particular
solution and it would be an obligation on the disputing to follow the solution given by the
Panchayat. But as the time passed by it was noticed that the decision given by the Panchayat was
very harsh punishments and was against the public policy as a result which violated the basic
rights of human being. So as the time passed by alongside of the development there were
different ways introduced to solve the disputes arising. One of the most common way of
resolving the dispute was by litigation and was one of the most opted option which led to
pending of Lakhs and Lakhs of cases which also results as a delayed justice. It is well known to

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everyone that “Justice delayed is Justice denied”. Due to this delay and pending cases there
was too much pressure which resulted as finding of different types of dispute resolution methods
that helps in easing the burden put on the shoulders of Courts of our country India.

There is another most important part of family is marriage. In present times, where everyone
aims to have a nuclear family subsequently which as results in marital disputes between married
couple which maybe related any problem relating domestic violence, custody of a child or how
much maintenance should be awarded to the female or any kind of dispute arising between a
married couple can also be issued by opting such methods.

As it is well known that after the establishment of courts there was flood of cases coming in
every time so there was an alternative method found to resolve such disputes they were:

 Arbitration
 Mediation
 Conciliation
 Negotiation
 Lok Adalat

In this paper mainly we will discuss about the way in which mediation helps or facilitates the
resolving of disputes arising in a marriage.

1.11 BACKGROUND OF THE STUDY

It is well known that in India we believe that marriage is a sacrament and not contractual
relationship hence the main motto is to always try to save the marriage in any kind of dispute.
Now if any one of the parties go to the court then the relief given by the court may take years
together and the judgement will only be given in One’s favor which may result in more problem
in their relation together. So there is always different methods one can choose to resove it more
efficiently and preserve the relation between the parties also.

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1.12 RESEARCH PROBLEM

The courts in India have always been so busy with the pending cases that the disputing parties
would have to wait for such a long time to get the relief. After which the legislature came with
new way to resolve dispute that is also given in the section 89 of CPC that before filing any
litigation one must go for ADR methods and then file for litigation if they are not satisfied with
the decision given by the ADR centres.

1.13 REVIEW OF LITERATURE

 Mediation In Family and Matrimonial Disputes: A critical study by Karthik Arora

 Mediation in Matrimonial dispute- Indian Perspective by Surbhi Soni and Ruchika sharma.

1.14 RESEARCH QUESTION

 Whether mediation more effective than filing a litigation in case of any dispute in
marriage

1.15 RESEARCH OBJECTIVE

 To know in the effectiveness and efficiency of mediation in family dispute.

1.16 HYPOTHESIS

Lack of communication is the root cause of all relationship issues. A impartial mediator can
facilitate communication, understanding, and resolution through the mediation process. In family
law cases such as divorce, mediation is especially suitable when the parties involved are likely to
keep up a relationship, particularly if there are little children. Mediation is beneficial. A lot of
ladies going through a divorce choose not to pursue a legal divorce. Expenses are decreased as a
result , there is a quicker settlement. Pairs can also eliminate trial uncertainty by using mediation
maintains privacy and reduces tension. Through mediation, couples can avoid the likelihood of
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legal action, maintain privacy, and lessen tense situations. Arbitration could additionally protect
the kids from the hurt caused by parental disagreement. Pairs who negotiate a settlement for their
divorce are through mediation are significantly happier than those reached through trial because
the parties they affix their own signatures to contracts. Pairs also learn conflict resolution
techniques for later.

1.17 SCOPE AND LIMITATION

This paper solely focuses how effective mediation is in solving disputes in terms of marriage
disputes and how it is better option than filing litigation if one wants to peacefully sort out the
issue.

1.18 METHODOLOGY

This paper is purely doctrinal research based paper. For this paper lot of articles and websearch
was done. To know how does a mediation work in case of any marital dispute arises.

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 CHAPTER – II

2.10 Whether mediation more effective than filing a litigation in case of any
dispute in marriage?

According to William E Gladstone “Justice delayed is justice denied” we can also put it in this
way we already know that India has a huge population and with this increase of population
results in increase of cases that are being filed. It is mostly seen that the people may file litigation
for many petty issues that are not that serious in degree and due to scarcity of more judicial
officers to decide the cases that are brought in front of the Court.

Mediation is a successful treatment that relies on a non-coercive and congruent approach. This
approach of conflict settlement not only saves time, but it also reduces acrimony and strained
relationships that may arise as a result of the processes 1. Mediation is increasingly popular in the
United States and elsewhere. In India, foreign countries, as well as North American and
European nations, are present.

Mediation is extremely useful in family disputes since family concerns involve not only the law
and facts, but also feelings. Mediation in the context of a marital conflict is very different in both
kind and content from mediation in the context of a commercial or property dispute. The
presence of bound components that are not achieved in other disagreements distinguishes and
opposes marital disputes from other styles of disputes. These variables include and form
motivation, feelings, societal compulsions, personal liabilities and duties of the parties, both
parties perspectives on life in general and the establishment of a wedding in particular, long-term
safety, and so on. When discussing mediation for marital disagreements, it is important to
remember that the variables that weigh the selections of the parties are not solely controlled by
rational criteria. In the context of marital disagreements, the mediator cannot just evaluate the
financial or practical aspects while ignoring the emotional part.

The intermediary must prepare both parties to appear for a response. The intermediary must
shape oneself or herself into a counselor and mediator in order to steer the parties towards an
amicably acceptable solution that offers enduring peace. The intermediary may be required to
1
Karthik Arora, Mediation In Family and Matrimonial Disputes: A Critical Study, Volume 1, SHARDA LAW REVIEW,
119, 2021

7
provide recommendations to both parties and will even have to cajole them into seeing the
acceptability of a planned solution. The suggestion for the answer could come from either the
party or the mediator. The intermediary's job would be to constantly bridge the gaps between the
ideas in order to achieve agreement.

Mediation advocates believe that it is a beneficial technique since it protects the family
relationships, and especially children, from experiencing the severity of the painful process
associated to a typical divorce and likewise supply swift justice.

Whereas detractors of mediation argue that it is unsuccessful because the perpetrator flees
without being fined through the State's organised penal apparatus. There are numerous benefits
and eminence associated with marital mediation, such as confidentiality and cost effectiveness,
informal methods, managerial power, complete flexibility of parties to reject the result, mutuality
The most fascinating and necessary element, for example, is that it adheres to the principle of
timely justice2. In the case of a marital or matrimonial conflict, the Court may submit the matter
to mediation in order to expedite justice. The court's objective is clear: settle things as amicably
as possible. The court's objective is consistent with the worldview of mediation advocates, which
is to protect family relationships while providing quick justice.

2.11 LAWS AND PROCEDURE OF MEDIATION

By now it is crystal clear that Mediation is a type of Alternative dispute resolution method which
is usually taken place in the presence of a third party known as Mediator. This process is less
time consuming, cost effective, neutral and flexible. Divorce mediation is a quick and easy
process3. Because there are thousands of unresolved cases in courts, using mediation lessens the
pressure on the courts. As a result, it is a very efficient process. Mediation is an informal court
process in which couples get solutions for rebuilding their marriage rather than passing
judgement. After the mediation procedure is over, the couple might choose to give their marriage
another try or file a divorce case in court.

2
Surbhi Soni and Ruchika Sharma, Mediation in Matrimonial Disputes – Indian Perspective, Volume 1, International
Journal of Legal Science and Innovation, 4,2019
3
Karthik Arora, Mediation In Family and Matrimonial Disputes: A Critical Study, Volume 1, SHARDA LAW REVIEW,
120, 2021

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Section 9 of the Family Courts Act of 1984 requires the parties to go through a mediation
session before approaching the court

MEDIATION OR JUDICIAL PROCEEDING

The judicial procedure rules in favour of one side, while mediation solutions are reached with the
assent of both parties4.

Judicial processes are founded on legal rights and obligations from the past; mediation allows
mutually agreeable agreements that suit everyone's interests.

Mediation transforms a win-lose situation into a win-win situation.

The main advantage of the divorce mediation procedure is that it eliminates the high expense and
lengthy litigation process. It is a neutral procedure that serves both parties. It is also quite
adaptable and does not necessitate any formality5.

The primary disadvantage of the divorce mediation procedure is that the mediator cannot coerce
or force either party to cooperate.

PROCEDURE OF MEDIATION

Unlike the Arbitration and Conciliation act there is no particular legislature to initiate the
mediation process between the parties in matrimonial disputes. The process can be initiated only
by two ways:

 Parties voluntarily agree for mediation process or private mediation

 Mediation is referred by the courts in accordance to Section 89 of Civil Procedure Code.

CASE LAWS

4
Karthik Arora, Mediation In Family and Matrimonial Disputes: A Critical Study, Volume 1, SHARDA LAW REVIEW,
121, 2021
5
Surbhi Soni and Ruchika Sharma, Mediation in Matrimonial Disputes – Indian Perspective, Volume 1, International
Journal of Legal Science and Innovation, 6, 2019

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In K.Srinivas Rao v D.A.Deepa6, the Supreme Court in this case emphasizes relevance of
mediation in matrimonial disputes including complaints. The court observed that civil
matrimonial disputes can be amicably settled by directing the parties to mediation. The courts
have always taken a positive approach and encouraged the settlement of matrimonial disputes

In Mohd. Mushtaq Ahmad v. State7, the wife filed a divorce petition along with an FIR
against the husband beneath Section 498A of IPC when disputes arose between the couple after
birth of a female baby . The province judicature directed the parties to mediation beneath Section
89 of CPC. The matter was settled amicably through mediation when that the wife determined to
quash the FIR. The Court allowed this by stating that the court in exercise of its inherent powers
will quash the criminal proceedings or FIR or grievance in applicable cases so as to fulfil the
ends of justice.

In Gurudath K. v. State of Karnataka8, the court expressed that even if the offences are
non-compoundable and if they relate to marital status disputes, the Courts are happy that the
parties have settled identical amicably and Section 320 of Cr.P.C wouldn't be a bar to the
exercise of power of quashing of FIR or criminal criticism in respect of such offences. Thus, the
court allowed for the offences to be combined on returning to the conclusion that the spouse was
underneath no threat or coercion for identical.

In Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd 9,the
Supreme Court processed that even once a case is attributed or assigned to mediation the court
retains its management and jurisdiction over the matter and also the mediation settlement can
need to be placed before the court for recording the settlement and disposal. This shows the
Court’s efforts in making an attempt to avoid mediation to be meted out in every single way

6
K.Srinivas Rao v D.A.Deepa, AIR 2013 SC 2176
7
Mohd. Mushtaq Ahmad v. State,(2015) 3 AIR Kant R 363.
8
GurudathK. v. State of Karnataka, Criminal Petition No. 7258 of 2014, order dated 20-11-2014
9
Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd , (2010) 8 SCC 24

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2.12 SUGGESTION

India has been experimenting with and discussing non-judicial routes like mediation,
conciliation, arbitration and negotiation still as easier judicial alternatives to form justice a poor
man's pragmatic hope. The rising pendency of cases within the courts might cause injustice to the
commoner. To attain the goal of justice to all or any through ADR method, the research worker
would love to suggest/recommend as follows:

1. The initial and foremost necessary step needed to be taken by government is to unfold
awareness regarding the method of ADR mechanism by creation of web site, publication through
media, native cable tv, radio, pamphlets, brochures’ and newspapers etc. or by holding seminars,
workshops, symposiums etc.

2. Existing strength of judicial officers isn't able to handle their own work so; they're going to
hardly get time for effective implementation of ADR mechanism. So, new judges ought to be
appointed to reduce this problem.

3. A vicinity of legal practitioners ought to become ADR practitioners. For the aim, it's necessary
for lawyers to impart applicable coaching and participate in role-plays or mock practices. Totally
different classes of mediators and conciliators ought to be created thus on change them to figure
in their various fields of specialization like family, company etc10.

4. Government ought to take effective measures to allot ample funds to meet the essential
necessities for the correct implementation of ADR mechanism, like correct infrastructure,
higher-up authority, manpower, panel of trained mediators, conciliators, arbitrators etc.

5. As most cases unfinished within the courts square measure the litigations by or against the
government, a special defender or treater should be appointed to unravel the cases by or against
the government matters11.

10
Karthik Arora, Mediation In Family and Matrimonial Disputes: A Critical Study, Volume 1, SHARDA LAW REVIEW,
124, 2021
11
Surbhi Soni and Ruchika Sharma, Mediation in Matrimonial Disputes – Indian Perspective, Volume 1,
International Journal of Legal Science and Innovation, 7, 2019

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2.13 CONCLUSION

Therefore it's concluded that different dispute resolution mechanism is a lot more advantageous
than the court redressal mechanism if enforced with robust body established, virtuoso mediators
and trained judges, with effective case management, Hence, it may be precisely concluded that in
step with analysis the choice dispute resolution mechanism is seen to be a lot of advantageous
than court redressal mechanism since, it's more cost-effective and fewer time intense that in
consequence, it can scale back the pendency of cases within the courts and offers a lot of
satisfying and acceptable solutions to the parties in disputes because it is settled with active
participation and convenience of the parties. Variety of cases resolved through ADR mechanism
are rising because of the legislative recognition given to ADR in section 89 of the code of civil
procedure, ADR mechanism is conducted seriously and cautiously. Since, there's rise in
resolution of cases through ADR method, it's welcome by majority of judges, lawyers and
litigants. However it'll take an affordable time to be stock-still within the existing adversarial
system because the folks square measure a lot of liable to previous system.

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