Mediation Strategies: Mediation in Family Disputes

What is Mediation?

Mediation is a dynamic, structured, interactive process where a neutral third party assists disputing parties in resolving conflict through specialized communication and negotiation techniques. So basically, Mediation is a process in which a neutral third party assists the disputing parties in resolving their disputes using their experience and expertise. Though we are often made to think or believe, a Mediator uses some special negotiation and communication techniques not available to the commoner to help the parties come to a settlement. In reality, the Mediator, being the neutral party, is better able to make parties look at the problems from a neutral standpoint.

Who can be a Mediator?

The parties can appoint a mediator with their mutual consent, such as panchayats or Mediation assisted by family elders and respectable members of society. In most communities, this was a common way of resolving disputes until about two decades back. However, with the families becoming nuclear and such elders losing much of the control over parties, a mechanism of Alternate Dispute Resolution has been set by courts in a legally binding way. This is called court-assisted Mediation. In such a mediation, a mediator is appointed by the Court in a pending litigation.

Does the Mediator decide your case?

It is a fallacy that the Mediator decides or adjudicates the case under consideration. The decision-making power lies with the parties in the mediation process. A Mediator does not decide what is fair or right, does not apportion blame, nor renders any opinion on the merits or chances of success if the case is litigated. Rather, a mediator acts as a catalyst to bring the two disputing parties together by defining issues and limiting obstacles to communication and settlement.

What type of cases are referred to Mediation?

Any civil case can be referred to Mediation. However, the Mediation refers to all matrimonial crimes, negotiable instrument cases and other soft crime cases.

Can my case be referred to Mediation?

Your case can be referred to Mediation only if both parties consent. You can request Mediation, but whether or not it should be referred to Mediation would depend on the consent of both parties. You and the other party must sign before the Judge for your case to be referred to the mediation center.

Is referring the case to Mediation compulsory for Matrimonial Disputes?

No. It is not compulsory, but many courts, including courts and CAW Cells in Delhi, often refer to matrimonial cases for Mediation. Unless both parties sign in front of the judge/ Police Official that they agree to Mediation, one cannot be forced.

What will happen if I do not attend Mediation?

Once you have agreed to attend Mediation, why don’t you want to attend? It is always better to attend mediation proceedings, as there is always a chance that the dispute will be resolved. However, if you cannot attend Mediation on a particular day due to some difficulty, inform the mediation center about the same either through a call/ sending someone and requesting a new date. You can also inform your advocate to inform the mediation center if you stay far away and get the next date.

What is the duration of the Mediation?

Normally, the file is referred for Mediation for a maximum period of 60 days. However, if the Mediator feels the matter is close to settling, they can seek more time from the Court. In Delhi, there are normally 4-6 sittings.

Can the Mediator force me to settle the dispute?

No, no one can force a decision on you. The mediators are trained to bring consensus and resolve the dispute. They may nudge you towards a settlement and offer various options or a singular option. And as things vary from person to person, a mediator can be a little harsh on certain things. But counter calmly. If there is coercion, report the matter to the Mediator in charge.

Is the Mediator a Judge?

A mediator can be a judge, lawyer or any other competent person the mediation centre has found fit for Mediation. Even when a judge is a mediator, he is not sitting there in the capacity of a judge and only acting as a mediator. MoU at the Mediation Centre is not a judgment but a court-enforceable agreement.

Shall I take my lawyer to Mediation?

There is no need for a lawyer in Mediation as parties have to settle the dispute. Few mediation centres bar advocates, whereas in places like Delhi, assistance from the parties’ advocates is sometimes sought. However, I strongly recommend attending Mediation Uninfluenced and learning about the non-negotiables.

What is the outcome of Mediation?

There can be two outcomes of Mediation. Mediation failed, or Mediation succeeded. In case mediation fails, it does not affect the merits of the case, and the cases continue from the stage in which they were referred to Mediation. However, in cases where Mediation is successful, a consent award is passed, or an agreement is prepared, which details the terms and conditions of the agreement between the parties. The same is also presented in the concerned Court to pass judgment/ award/ withdrawal of the case as agreed in Mediation.

Is the outcome of Mediation binding on both parties?

Once both parties have signed the MOU, it is binding on them. The only way such a settlement can be junked is based on fraud and coercion. There are few instances where courts have repudiated the MoU entered in Mediation. However, an agreement in Mediation does not create a bar for litigations arising from incidents after the MoU.

Can I settle partial disputes in Mediation?

Yes, settling the disputes partially in Mediation is very much possible. Supposedly, a person is fighting four cases Maintenance Judgements, 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023), Divorce and Child Custody. Any 1, 2, 3 or all 4 cases can be settled in Mediation, and the remaining cases can continue in respective courts.

When going for Mediation,

please keep in mind the following dos and don’ts:

1. Focus on the solution and not the problem.
2. First of all, understand that you can say NO to any arrangement that does not suit you.
3. Always arrive at the mediation centre on time, even if the other party is late. Don’t get tired of waiting.
4. Dress appropriately. A decently dressed man creates a different impression on people.
5. Speak softly yet firmly. If someone is to create a nuisance, let it be the other party and not you.
6. If there is any blackmail/ threatening, etc., immediately stall the mediation process until these factors are removed from the equation, even if it means failure of the mediation.
7. Know beforehand what all points are negotiable for you and what is non-negotiable. For instance, in the above-cited example of four cases, the custody of the child is non-negotiable, but alimony can vary.
8. Don’t think that mediation is a trial and that you have to present any evidence. These things don’t impress the mediator, and you may also be divulging your defence beforehand.
9. If you can speak to the mediator one-on-one, use the opportunity to offer solutions and not state your problems. The mediator is no agony aunt.
10. If the other party signs allegations, deflect them, saying, “I don’t want to disclose my defence.” You are there to settle the matter and not answer any questions.
11. Neither get angry nor try to infuriate/irritate the other party. You are there to resolve the disputes and not get even.
12. Never shout.
13. Never be frightened of the chance of mediation failing. Nowadays, less than 50% of mediations succeed.
14. Don’t try to use mediation as a delaying tactics for the trial.
15. Never try to record anything; this is contempt of court and inadmissible in court proceedings.