INTRODUCTION-
Mediation and Conciliation which falls under the ambit of Alternative Dispute Resolution are the better means for the families to dissolve their disputes as it keeps the families together because Families are the group of peoples who are made to live with each other. This dispute resolution process has far better results than the process of litigation as it ensures the win-win position to the parties but on the other side in litigation, there is only one winner, and the other needs to suffer which always ends up in the breaking of families.
HISTORY OF MEDIATION IN INDIA-
Mediation gets introduced in Section 89 of Civil Procedure Code, 1955, after a successful amendment in it, on the recommendation of Law Commission of India and Justice Malimath Committee for which the committee recommended the court to send the cases for arbitration, mediation, conciliation or judicial settlement after their issues get framed. Hence, in this way, Alternative Dispute Resolution came into force.[1]
WHAT IS MEDIATION AND MEDIATOR-
It has been suggested that the term mediate is derived from the Latin word ‘mediare‘which means to be in the middle‘.[2] According to this definition, Mediation provides the platform where parties can settle their disputes with each other with the help of neutral third party between them and can independently discuss their problems without any dependence, it is a kind of informal system which happens the outside of the judicial gates and needs very minimal expenditure in comparison to litigation. Here Mediator does not impose his decisions on the parties and further woks as a facilitator so that they can reach the settlements. He/she is a person who with the help of his negotiation skills, human-tactics, and other effective listening and suggesting skills sometimes turned the table and dissolved the hectic issues which save the thousands of lives.
WHAT IS CONCILIATION AND CONCILIATOR-
Conciliation is another dispute resolution process where a conciliator or an expert is appointed to resolve the dispute between the parties. The process of conciliation is just similar to mediation but the difference is that can be more than one conciliator can be involved in this process and also, here the third party has more power he can intervene for the settlement of disputes whereas in mediation the third party is just a neutral part and can not intervene between the procedure.
ROLE OF MEDIATION AND CONCILIATION IN FAMILY DISPUTES-
As nowadays people want to keep themselves away from courts and their mess and working to make themselves more secure against the judiciary, so in that case, ADR (Alternative Dispute Resolution) is playing a vital role by way of facilitating with some informal means like mediation and conciliation so that people can solve their disputes with the time and money effective system. This process is in trend now even judiciary, judges and advocates themselves are promoting this means because it is a platform which allows the parties to make deep thinking on their demands, claims and creates a kind of positive circumstances where parties tried to communicate and dissolve their disputes while listening on each other’s part whereas in the court system the parties only stick to their claims and they see nothing except judgment and punishment which makes the parties as well as other life’s jointed to them suffer.
WHY IT IS EFFECTIVE FOR FAMILIES?
Mediation and Conciliation is in use because it is creating a kind of environment where parties can understand each other and it gives a kind of 99% turnover in the form of bringing parties together or at one mutual agreement. It is working on the structure of the family, just like in a family when any dispute takes place then their elders try to resolve them by talking with the members between whom the dispute arises and later arriving at a good solution which is taken with everyone’s consent, in the same way, mediation and Conciliation also gives a feeling of getting your dispute solved between you without making a fuss of it and arriving at a healthy solution along with a preserved relations.
MANDATING MEDIATION AND CONCILIATION IN FAMILY DISPUTES-
Along with ADR there are another formal systems are also working very effectively like Family Courts Act, 1984, Civil Procedure Code, Hindu Marriage Act and the Legal Services Authorities Act, 1987 which are facilitating the Lok-Adalats to mediate between the parties and solve their disputes and are rapidly mediating the concerns of the parties which is far better than circling then traditional courts.
Section 9 of the Family courts act, 1984[3] describes the duty of Family Court to make efforts for settlement, its clause(2) talks that family courts need to adjourn the proceeding of the case where there is a reasonable possibility of settlement and should forward towards the settlement
Section 23 (2) of the Hindu Marriage Act, 1955[4] restricts the court to go for conciliation first where there is a possibility of a settlement between the parties along with some exceptions attached to it.
Therefore, these laws are indirectly providing a way for mediation in cases where there is a ray of hope that maybe parties will change their decision and accept the settlement.
WHY IT IS EFFECTIVE IN COMPARISON TO THE COURT-SYSTEM? –
In mediation and conciliation facilitator can be a local person also who is well familiar with the conditions and situations of the parties and with the help of it can negotiate with them at an extreme level which can just change the minds of the claimant.
Another thing is that here parties are independent enough to choose their own time, place and comfort which also plays an impactful role because when the person proceeds for anything according to their comfort and time then it generally makes a thing easier for him and the chances of dispute getting solve get highly increased but if talk about courts then a person needs to follow their instructions and have to present according to them in any condition which sometimes hesitates the parties and also, the possible chances of getting dispute settles gets lost into vain.
IMPLICATION-
- Speedy Trails in other matters-If family disputes are going to prefer ADR system for their dispute resolution then it will reduce some burden of the courts as now thousands of family disputes arising on daily basis and adding further into the burden of courts so if they get shift with ADR then it will lead courts to make their procedures fast for other disputes.
- Faith in Judiciary- When some burden of courts get settle with the ADR system then there may be a chance that the court gets extra time to deal with other issues and get them resolves as soon possible so it will enhance the belief of genera people in the judiciary.
- Families won’t breakdown- Mediation and Conciliation creates a kind of environment where the possibility of families resolving their disputes with the help of negotiation are high and due to which lots of families can safeguard themselves without any broke down.
CONCLUSION-
Therefore, it concludes that Mediation and Conciliation are playing a huge role in the matters related to family disputes and giving win-win results to parties due to which parties can win from both side of their families as well as in their pleadings filed by them without breaking the heart of other parties or family members. This system comes with a variety of comforts with it which is doing the work of attracting peoples towards it so that they get even a better means to dissolve their disputes.
Sources:
[1] https://delhicourts.nic.in/dmc/history.htm
[2] See Picard ‗The Many Meanings of Mediation: A Sociological Study of Mediation in Canada‘ (Carleton University, 2000).
[3] http://legislative.gov.in/sites/default/files/A1984-66_0.pdf
[4] https://indiankanoon.org/doc/542052/
This blog is written by Anjali Tripathi, Nirma University
Some of her blogs-
- DIFFERENCE BETWEEN EXECUTION, SUSPENSION, REMISSION, AND COMMUTATION OF SENTENCES
- PROCEDURE FOR MAINTENANCE OF WIFE and CHILD
- DYING DECLARATION
- DOCTRINE OF ESTOPPEL
- MAINTENANCE UNDER MUSLIM LAW
- SET-OFF AND COUNTER-CLAIM
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