MEDIATION AND CONCILIATION: AN

EFFECTIVE MODE OF FAMILY DISPUTE

RESOLUTION
BY- GARIMA JAIN

Many legal experts and psychiatrists think that the use of Alternative Dispute Resolution
(ADR) methods such as arbitration, conciliation, mediation etc. must be encouraged in
resolution of family disputes. Justice R C Lahoti, The CJI once stated that ADR mechanisms
specially mediation and conciliation should play a major role in settling of disputes as it save
energy, time, money of litigants particularly in the family matters also this process do not
change the mind set of parties and end up in bitterness. The actual philosophy behind ADR is
amicable dispute resolution outside the court and conciliation/mediation are such process that
provides a space where parties can sit and focus on what they really want rather than what the
law will let them fight for .

Mediation and conciliation are very old practices and have deeply rooted in the social
tradition of many societies. As earlier in India family disputes were resolved by the elders of
family or by the heads of village who acted as the mediator/conciliator. This culture is still
ubiquitous in Indian villages as panchayats also perform a similar function and are preferred
by the villagers over courts due to easy accessibility and it promotes dispute resolution.

Family dispute resolution is a process where a mediator is an impartial third-party who

facilitates the resolution of family disputes by reaching on a mutual agreement. The mediator
encourages and assists the communication between parties and work with them by exploring
various options for mutual agreement. Hence, It empowers the parties to choose alternative
options which a court may not offer as remedy.

References of conciliation/mediation in family dispute resolution can be found in Civil

Procedure Code, 1908, Family Courts Act, 1984, Hindu Marriage Act, 1955 and Legal
service authorities Act, 1987.
Difference between Negotiation, Conciliation and
Arbitration
There are various ways to resolve a family law dispute outside the court room. The new
divorce law mentions negotiation, arbitration, and collaborative law. There are other forms of
family dispute resolution. Some provinces allow the use of mediation to resolve family law
disputes.

Deciding which approach is best suitable for the person always depends on the person's
situation.

Negotiation

Negotiations can be conducted with or without the help of legal counsel. It involves trying to
find a compromise or an agreement between you and your former spouse on issues related to
separation and divorce.

A parenting plan means or describes how the parents will raise their children after separation
or divorce. The parenting of parents describes that how parents cannot live together and make
the important decisions about their children in both the homes. You can develop a parenting
plan as part of any family dispute resolution. For more information on parenting plans, see
the parenting plan checklist.

Mediation and Conciliation

An arbitrator or conciliator are neutral third party who can help you and your ex-partner
identify and discuss issues related to paternity, separation or divorce. Mediators can help you
identify problems and find possible solutions. During mediation, you and your ex-partner tell
each other directly what you want and want for yourself. If you have children, you can also
say that what you think is in the interest of your children.

The arbitrator does not take your side and decide for you. They also cannot provide legal
advice. Although the mediator helps you reach an agreement, you and your ex-partner
ultimately decide on the best parenting arrangement for your child.

Because mediation usually involves the direct discussion with other person, it is not for
everyone.
In Rajesh Kumar Saxena v Nidhi Saxena1, The High Court of Allahabad called it the
limited duty of the family Court to try reconciliation before trial proceedings matter.

Arbitration

In some provinces, issues of upbringing, as well as property and support issues, can be
resolved through mediation. In arbitration, you and the other person agree to allow a neutral
person - the arbitrator - to decide legal issues.

Mediation is a private process and you and your ex-partner are responsible for paying the
arbitrator, as well as your own legal advisor (if you have one). Arbitration is a more informal
process than litigation but amongst all other ways it is the most formal way of dispute
resolution because in this the parties involved has to follow the decision of the arbitrator.

Role of a mediator in a family mediation

The main role of the mediator is to help the parties so that they can communicate with
each other and come to an agreement.

• It is also the role of an arbitrator to inform the parties about the mediation
process, the issues to be dealt with, the principles to be considered, etc.
• The arbitrator must ensure that both parties are heard during the mediation
process.
• It is very important that the arbitrator be impartial in handling the case. If there
is any doubt in the arbitrator's mind that he cannot remain impartial, he must
step down and a new arbitrator must be appointed in his place.
• The arbitrator must maintain confidentiality and not tell anyone any details
about the arbitration process.
• The arbitrator must maintain confidentiality and must not disclose any details
about the arbitration process to anyone.

1
1995(1) HLR 472
 Advantages of Family Mediation

• Both the parties can actively participate in the process and the parties decide
whether they want to accept or reject the outcome of the proceedings.
• Win-win situation for both the partied.
• It helps in resolving the dispute amicably and without affecting relationships
• Provides a speedy justice that also reduces the burden of the courts.
• Private process of dispute settlement and confidentiality is there
• Less technicality and informal process
• It also saves the parties cost because they have more control over this process
than court proceedings.

Provisions related to Family Dispute Resolution

Reference to arbitration / reconciliation in settling family disputes can be found in the Family
Courts Act, 1984, Code of Civil Procedure, Hindu Marriage Act and Legal Services
Authority Act, 1987, which gives special status and effect to Lok Adalat. In resolving family
disputes. The Family Court Act was enacted with due consideration for disputes relating to
marriage and family matters and for the establishment and settlement of a speedy conciliation
agreement relating thereto. Conciliation, non-confrontational approach, quick settlement,
multi-disciplinary approach to deal with family disputes, informal and simple rules of
procedure and gender justice are the basis of the philosophy of Family Courts. The entire
structure of family courts rests on twin pillars of reconciliation and consultation. Counsellors
are not only required to provide counselling, but also bring in greater harmony and
coordination.

 Section 9 (1) of the Family Courts Act states that “in every case or proceeding, a
prima facie attempt shall be made by the Family Court, where it is possible to do so
in accordance with the nature and circumstances of the case, to assist and prosecute
or proceed.” Encourage the parties to reach an agreement on the subject matter of the
Act and follow the procedure it deems fit, subject to any policy made by the High
Court of Family Court for this purpose. “Whereas section 9 (2) directs family court
 to adjourn hearings if it appears to the court that there is some reasonable possibility
of settlement between the parties for the period required to obtain the necessary steps
for adjustment. However, these provisions do not bind arbitration / conciliation.

 Section 23 (2) of the Hindu Marriage Act, 1955, which contains similar provisions,
provides that before granting any relief under this Act, it shall be the duty of the
court, for the first time, in each case where it makes every effort possible in the
nature and circumstances of the case, to make every effort to attain a settlement
between the parties, provided that nothing which is contained in this sub-section
applies to any proceeding where relief is sought on any of the grounds specified in
sub-clause (1) of clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause
13 of clause (vii).

- It also states that for the purpose of the court's decision on such settlement, the
court may do so, if the parties so desire or if the court deems fit and proper, for a
reasonable period of time yet at fifteen days refers to the case of the parties in this
case or to any person appointed by the court if the parties fail to name anyone the
person, if disposed of and has been affected, will have to dismiss the proceedings
in relation to the report and to the court with the instructions to report to court.
There is not compulsory to go for arbitration before seeking the process of
litigation here.

• Similarly, Section 89 of the Code of Civil Procedure (Amendment) Law, 1999

requires the courts to identify cases where an orderly settlement is possible, prepare
the terms of such settlement and invite the comments of the parties to the dispute.
Where the court to the conclusion that arbitration is the appropriate method of
settlement, it can itself act as an arbitrator and "there will be agreement between the
parties". The language in this section is mandatory in nature and makes arbitration
mandatory.
Conclusion

• The process of mediation in a family law dispute is informal, safe and also a
way to protect the confidentiality of the parties. The popularity of the
mediation in matters of family law disputes is growing by the time. The parties
not only get an opportunity to resolve their dispute by discussion but also get
the opinion of the third neutral party i.e mediator who is more aware and
experience of such cases.

• It also ensures the satisfaction of the parties when mediators listen to their
problem opinions about the matter and try to reach a solution amicably which
is feasible for both the parties. They also can get the second opinion from their
lawyers. Also, if the parties are not satisfied by the outcome of the mediation
and they always have another door open to them to reach out to Court.