What is Divorce Mediation
Mediation is one of the most extensively discussed methods for resolving conflicts these days. When people first visit the courtroom and get a taste of the litigation, they tend to seek the quickest path to settlement, that’s when mediation comes into play. Mediation is a form of negotiation and a popular divorce procedure. Several mediation centers have been established across the country to expedite the resolution of cases.
Also read Divorce Law in India
Mediation is a method of dispute resolution in which one or both parties appoint a mediator to assist them in achieving an amicable solution. A mediator is a neutral third party who assists parties in reaching an agreement by facilitating discussion among them.
Before litigation, many provisions in the law provide for mediation and settlement:
|
Section/Rules |
Act |
Particulars |
|
Section 89 |
Civil Procedure of Code, 1908 |
Section 89 prescribes mediation as one of the techniques for achieving an agreeable agreement. However, both parties must agree under this section. |
|
Section 23(2) and 23(3) |
Hindu Marriage Act,1955 |
Depending on the nature and circumstances of a case, a court is directed to attempt reconciliation between the divorce-seeking parties. |
|
Section 34(3) and 34(4) |
Special Marriage Act, 1954 |
This clause establishes reconciliation as the first-instance alternative for courts in divorce cases. |
|
Section 9 |
Family Courts Act, 1984 |
Under this section, the courts are required to resolve family conflicts as quickly as possible. |
|
Rules |
Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003. |
For the first time, the concept of mandatory mediation was introduced. Mandatory mediation permits the courts to refer a matter to mediation even without the consent of both parties if there is a chance of a settlement. Mandatory mediation covers family conflicts, including matrimonial disputes. |
In the case of K. Srinivas Rao v D. A. Deepa [(2013) 5 SCC 226], the Supreme Court held that “even in criminal uncompoundable cases where parties wish to settle, they should be sent to mediation, making mediation mandatory in divorce proceedings if there is a chance of a settlement between the parties. It also mandated that all mediation centers establish pre-litigation desks/clinics and publicize them to the general public so that marriage problems might be resolved without resorting to litigation”.
How long does divorce mediation take and what are the costs?
The mediation procedure takes a long time since the mediator must first assess the issues before finding a solution. Some cases may last 30 days, while others may endure 7 to 8 months. It is dependent on the client's situation. While a mediator's cost may be comparable to an attorney’s, the mediation process takes far less time than going via traditional litigation. Less time spent means less money spent on fees and expenditures.
Use of Mediation During Divorce Proceedings in India
Mediators do not deliver a judgment but rather facilitate the resolution of disagreements between the parties. Many people approach mediation, before taking the issue to the court. One can initiate mediation by notifying the other party in advance by written notice.
Mediation is a fairly flexible process because the parties decide the best time for them.
Both parties are initially apprehensive about disclosing their personal lives to another or a third party. The mediator should start by asking simple questions and only then move on to deeper questions if the parties are at ease.
Previously, it was not the responsibility of mediation centers to resolve couples' problems. However, as time passes, mediation centers have been developed and are successfully operating to alleviate the burden of the court and to provide a wider perspective of the Indian judiciary.
Types of Mediation
Mediation can be classified into two categories:
Mediation through Court
Court-ordered mediation—Section 89 of the Code of Civil Procedure, 1908, deals with court-ordered mediation for pending matters referred by the court.
Private Mediation
Qualified mediators provide a private service. The court or members of the public can use this service for free to settle any dispute. Private mediation is utilized to handle pending court cases as well as pre-litigation issues.
Mediation in Divorce
A couple visits a mediation center when they believe their relationship can be saved. Meditation centers have their own set of rules for dealing with issues. As a result, before going to court, couples are encouraged to seek mediation since the mediator attempts to bridge a gap between the two parties in order to preserve the marriage. In most circumstances, the court picks mediators based on their qualifications.
You may like to read You may also like to read Annulment of Marriage.
Advantages and Disadvantages
Divorce mediation has both advantages and disadvantages.
Advantages
Mediation reduces the cost of litigation as well as the length of the process. It is a private and ethical process that does not affect either party's feelings. A third party assess the situation and comes to a conclusion that is ideal for both parties. As a result, it is a neutral procedure. Mediation is a straightforward and flexible technique that requires little formality.
Disadvantages
The mediator cannot pressurize or force any side to cooperate during the mediation process. It is entirely up to the individual whether or not to cooperate. Divorcing couples should try to address the matter on their own first, and only seek mediation if that fails.
You may also read Child Custody Law in India.
Duty of the Court
Section 9 of the Family Court Act of 1984 prescribes the Family Court's duty to make settlement efforts. The duties of the family court are:
- To assist and encourage the Parties to settle the dispute.
- If the Family Court has reason to believe that possibility of settlement exists, then the Family court can adjourn the proceeding to enable amicable settlement.
Section 9 of the Family Court Act, 1984 mandates that a matrimonial dispute involving maintenance, child custody, divorces, and other issues be resolved through mediation. It also says that if the parties agree, they should go to a mediation center. Counselors can assist the family court in resolving disagreements if necessary. To minimize unnecessary delay, mediation centers should set a deadline for the resolution of the issue.
Divorce mediation is a must-do procedure that must be completed before going to court. It gives parties a chance to amicably settle their differences.
Frequently asked questions
What is the Role of Mediation in Divorce?
What is the Role of Mediation in Divorce?
Mediation plays a crucial role in divorce by providing a structured process where a neutral third party, known as a mediator, helps the divorcing couple reach a mutually agreeable settlement. The benefits of mediation in divorce include:
- Conflict Resolution: Helps resolve disputes amicably without the adversarial nature of court proceedings.
- Cost-Effective: Generally less expensive than litigation due to fewer legal fees and shorter timeframes.
- Control: Couples maintain control over the decisions rather than having a judge decide for them.
- Confidentiality: Mediation is a private process, unlike court cases, which are public.
- Better Communication: Encourages open communication and cooperation, which can be beneficial, especially when children are involved.
- Customized Solutions: Allows for tailored solutions that meet the specific needs of both parties and their children.
What are the Five Stages of Mediation?
What are the Five Stages of Mediation?
The five stages of mediation typically include:
-
Introduction:
- The mediator explains the mediation process, sets ground rules, and ensures that both parties understand the purpose of mediation. Confidentiality is also discussed.
-
Statement of the Problem:
- Each party is given an opportunity to present their perspective on the issues at hand without interruption. This helps identify the key areas of dispute.
-
Information Gathering:
- The mediator gathers relevant information from both parties, which may include financial documents, custody arrangements, and other pertinent details.
-
Identification of Issues and Interests:
- The mediator helps both parties identify their underlying interests and the main issues that need resolution. This stage focuses on understanding each party's needs and concerns.
-
Negotiation and Settlement:
- The mediator facilitates negotiations between the parties, helping them explore various options and solutions. The goal is to reach a mutually acceptable agreement on all issues, such as property division, child custody, and spousal support.
How Long Does the Mediation Process Take for Divorce?
How Long Does the Mediation Process Take for Divorce?
The duration of the mediation process for divorce can vary widely depending on the complexity of the issues and the willingness of the parties to cooperate. Typically, mediation can take anywhere from a few sessions to several months. On average, it may take:
- Simple Cases: A few weeks to a couple of months.
- Moderate Cases: Two to four months.
- Complex Cases: Six months or more.
Each session usually lasts 1-2 hours, and the number of sessions required can range from a few to several, depending on the number and complexity of issues to be resolved.
What If Mediation Fails in Divorce?
What If Mediation Fails in Divorce?
If mediation fails in divorce, the following steps are typically taken:
- Litigation: The case proceeds to court, where a judge will hear the case and make decisions regarding the unresolved issues.
- Arbitration: In some cases, parties may choose arbitration as an alternative to litigation. An arbitrator, like a judge, will make binding decisions.
- Continued Negotiation: Even after a failed mediation, parties may continue to negotiate informally through their attorneys to reach a settlement before or during court proceedings.
- Temporary Orders: The court may issue temporary orders regarding child custody, support, and other issues to maintain stability until the final decision is made.
- Court Hearings: Both parties present their case, evidence, and arguments in court. The judge then makes a final decision on all unresolved matters.
Summary
Mediation in divorce is a valuable process that promotes amicable settlements, cost savings, and customized solutions while maintaining privacy and control over decisions. The five stages of mediation include introduction, statement of the problem, information gathering, identification of issues and interests, and negotiation and settlement. The process duration varies but typically ranges from a few weeks to several months. If mediation fails, the case usually proceeds to litigation or arbitration, and the court or arbitrator will make binding decisions on unresolved issues.
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Frequently asked questions
What is the Role of Mediation in Divorce?
What is the Role of Mediation in Divorce?
Mediation plays a crucial role in divorce by providing a structured process where a neutral third party, known as a mediator, helps the divorcing couple reach a mutually agreeable settlement. The benefits of mediation in divorce include:
- Conflict Resolution: Helps resolve disputes amicably without the adversarial nature of court proceedings.
- Cost-Effective: Generally less expensive than litigation due to fewer legal fees and shorter timeframes.
- Control: Couples maintain control over the decisions rather than having a judge decide for them.
- Confidentiality: Mediation is a private process, unlike court cases, which are public.
- Better Communication: Encourages open communication and cooperation, which can be beneficial, especially when children are involved.
- Customized Solutions: Allows for tailored solutions that meet the specific needs of both parties and their children.
What are the Five Stages of Mediation?
What are the Five Stages of Mediation?
The five stages of mediation typically include:
-
Introduction:
- The mediator explains the mediation process, sets ground rules, and ensures that both parties understand the purpose of mediation. Confidentiality is also discussed.
-
Statement of the Problem:
- Each party is given an opportunity to present their perspective on the issues at hand without interruption. This helps identify the key areas of dispute.
-
Information Gathering:
- The mediator gathers relevant information from both parties, which may include financial documents, custody arrangements, and other pertinent details.
-
Identification of Issues and Interests:
- The mediator helps both parties identify their underlying interests and the main issues that need resolution. This stage focuses on understanding each party's needs and concerns.
-
Negotiation and Settlement:
- The mediator facilitates negotiations between the parties, helping them explore various options and solutions. The goal is to reach a mutually acceptable agreement on all issues, such as property division, child custody, and spousal support.
How Long Does the Mediation Process Take for Divorce?
How Long Does the Mediation Process Take for Divorce?
The duration of the mediation process for divorce can vary widely depending on the complexity of the issues and the willingness of the parties to cooperate. Typically, mediation can take anywhere from a few sessions to several months. On average, it may take:
- Simple Cases: A few weeks to a couple of months.
- Moderate Cases: Two to four months.
- Complex Cases: Six months or more.
Each session usually lasts 1-2 hours, and the number of sessions required can range from a few to several, depending on the number and complexity of issues to be resolved.
What If Mediation Fails in Divorce?
What If Mediation Fails in Divorce?
If mediation fails in divorce, the following steps are typically taken:
- Litigation: The case proceeds to court, where a judge will hear the case and make decisions regarding the unresolved issues.
- Arbitration: In some cases, parties may choose arbitration as an alternative to litigation. An arbitrator, like a judge, will make binding decisions.
- Continued Negotiation: Even after a failed mediation, parties may continue to negotiate informally through their attorneys to reach a settlement before or during court proceedings.
- Temporary Orders: The court may issue temporary orders regarding child custody, support, and other issues to maintain stability until the final decision is made.
- Court Hearings: Both parties present their case, evidence, and arguments in court. The judge then makes a final decision on all unresolved matters.
Summary
Mediation in divorce is a valuable process that promotes amicable settlements, cost savings, and customized solutions while maintaining privacy and control over decisions. The five stages of mediation include introduction, statement of the problem, information gathering, identification of issues and interests, and negotiation and settlement. The process duration varies but typically ranges from a few weeks to several months. If mediation fails, the case usually proceeds to litigation or arbitration, and the court or arbitrator will make binding decisions on unresolved issues.
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