Introduction
“An ounce of mediation is worth a pound of arbitration and a ton of litigation.”[1]
The statement metaphorically yet beautifully captures the essence of mediation as an efficient method of dispute resolution. The Indian courts have acknowledged the need for mediation within the justice system, thereby ushering in a dispute resolution mechanism that is distinct from adversarial litigation.[2] A favorable judicial outlook towards mediation and India being a signatory to the “Singapore Convention on Mediation”[3] furthers the impetus placed on mediation to resolve disputes in India.
More than 10 million civil suits are pending before the lower courts in the Indian judiciary, and close to 65% of them are more than 12 months old.[4] Given the huge backlog of cases, the state had to devise a solution that goes beyond the conventional trial-based justice system.[5] This led to the legislature incorporating alternative dispute-resolution mechanisms within various statutes.
With the recent statutory recognition given to mediation[6], the story has come a long way. Under the Mediation Act, India has taken a comprehensive and uniform policy for implementing mediation.[7] Mediation’s importance is irrefutable since it can lead to more than 60% success rates, with an average time spent on a single case being less than 3 hours from a single mediation centre.[8] The focus of this essay shall be on court-referred mediation on civil disputes such as those of divorce, custody or maintenance, and shall not be covering the criminal implications within the ambit of family law such as dowry, domestic violence etc. Though there is sufficient statutory recognition given to mediation within the realm of matrimonial disputes, it often fails to develop a pragmatic and empathetic approach when dealing with cases. The application of the law is often mechanical and is often done without due consideration being provided to the socio-cultural and economic position of the spouses, particularly women.
The Woes of the Wives: From the Cold Courtrooms to Mediocre Mediators
Courts have been found to be the “least preferred means of dispute resolution.”.[9] A general social disapproval of the courtroom-based justice delivery mechanism means that alternative dispute resolution mechanisms need to evolve to address them.
It has been argued that every dispute has a set of factors affecting any dispute: economic, emotional and intrinsic.[10]Conventional methods of dispute resolution focus only on the economic outcomes of a dispute, and due attention is not given to the emotional intricacies of the dispute. Unlike a civil or commercial dispute, a matrimonial dispute involves the lives, relationships and futures of two very close human beings and their dependents.[11]
India still performs poorly in the Global Gender Gap Report 2024, ranking 124 out of 146 countries.[12] Furthermore, the Indian society continues to remain dominantly patriarchal[13] and is across the different communities.[14] An unfavourable socio-economic situation implies that within the household, women tend to frequently suffer from domestic conflicts owing to ego problems, incompatibility with other family members, and limited economic freedom coupled with resistance to undertaking employment opportunities.[15] Moreover, given the complexity of such disputes, it is seldom easy to categorize the spouses as victims or victimizers.[16]
Another very crucial factor that is often overlooked by the institutions is that of the stakes involved in cases of divorce, custody, or maintenance. Since women are not as economically independent as men, they cannot always afford a prolonged and expensive legal battle to get the courts to award maintenance. In addition to this, factors such as the stage of litigation, the age of the parties, the presence of children, literacy, and the gender of the lawyers and the mediators are also relevant factors in a mediation proceeding.[17]
Given that litigation continues to be an expensive and time-consuming process, it makes availing such remedy extremely difficult for both parties. Therefore, the Supreme Court has stated that efforts should be made to resolve such disputes during the pre-litigation phase by setting up pre-litigation desks/clinics in all mediation centres, specifically for matrimonial disputes.[18] Empirical data also reiterates that there are fundamental issues in matrimonial disputes that have resulted in a consecutive decrease in case settlement ratio over time.[19]
But the larger issue lies with the way the judiciary perceives and adjudicates matrimonial disputes. Scholars have stated that judges who are, at times, disconnected and disinterested in the crucial emotional aspects of a matrimonial dispute will mechanically apply laws to arrive at objective conclusions, which could pose serious issues for achieving equitable gender justice.[20] This implies that the rigidity within the conventional courtroom-based dispute resolution offers few equitable remedies to women. Moreover, these courts often overlook the vulnerability of such women, who may also be suffering from emotional trauma and economic liability. Feminists have argued that statutory provisions within the country continue to harbour the latent patriarchal notion of women and social customs, leading to laws being a reflection of the unequal society.[21] This leads to a nexus of disadvantages for the women involved in such disputes: an unempathetic judiciary implementing provisions of law that are ignorant of their socio-economic and emotional vulnerabilities through a process that is prolonged, financially burdensome and psychologically taxing.
The relevance of understanding these conditions is to contextualize the state in which the bulk of the disputes are before being referred to mediation. The Delhi High Court has clarified the inter-related naturehttps://indiankanoon.org/doc/13625144/ [22] of the jurisdiction of Section 89 CPC, with the Legal Services Authorities Act and the A&C Act, to the discretion of the courts in order to develop a robust alternative dispute resolution system within the country. However, this implies that it is up to the decision of the courts whether a case is amenable to mediation or not, as per Section 89 of the CPC. This can lead to two extreme situations, one being that matters amenable to resolution through mediation are not referred for the same.[23] The other is that even the cases that have no scope of settlement are referred to mediation, making the ultimate litigation even more prolonged. The lack of judicial empathy towards the parties and understanding regarding the possibility of settlement can be attributed as causative factors of the same.
Mediation Misses in Marriage Mishaps
Given the unfortunate reality that even today, a significant population of women in India are socially and economically disadvantaged, and litigation is not the best way for many such women, mediation becomes more of a compulsion rather than a choice. An empirical study concluded that mediation in India faces greater administrative and social hurdles than in the United States.[24] The study highlighted that there is a lack of public trust in the effectiveness of mediation proceedings and an administrative reservation in adopting mediation as a mainstream method of dispute resolution. Moreover, most of the mediation cases are referred by the civil courts under Section 89 of the CPC or through the Family Courts under the Family Courts Act[25] or the Hindu Marriage Act,[26] or the Special Marriage Act.[27] This leads to the inference that the majority of mediated cases are not voluntary but rather through a referral, reinforcing the lack of public faith in the effectiveness of mediation.
The NALSA, SLSAs, and DLSAs have been constituted to provide legal aid in the form of conciliations, mediations, etc.[28] Furthermore, even the Supreme Court has acknowledged the importance of institutional mediation and settlement of disputes, especially in cases of vulnerable parties.[29] The Legal Services Authorities Act, when read together with Section 89 of the Civil Procedure Code and other relevant legislation, vests responsibility on SLSAs and DLSAs to conduct mediation and pre-litigation counseling.[30] Thus, mediation undertaken by the NALSA, SLSAs, and DLSAs forms the bulk of mediations in India.
One of the advantages of mediation being conducted under the Legal Service Authorities is the confidentiality of proceedings. Even the courts have stated that the mediators, while submitting mediation reports, must not disclose the transcript of the proceedings.[31] Given the sensitive nature of domestic disputes, an assurance of confidentiality goes a long way in incentivizing mediation to the disputed parties. However, many families, especially in the socially and economically backward areas, are unaware of the practice of mediation. The Legal Services Authorities are helpful in alleviating this issue as they conduct multiple Legal Literacy Awareness Camps, spreading awareness of mediation as an effective method of dispute resolution.[32] In addition to these initiatives, it is important to note the role of Lok Adalats in settling matrimonial disputes. Approximately 60% of matrimonial disputes are resolved through ADR mechanisms in India. Out of these, the Lok Adalats accounted for nearly 35% of the resolutions.[33] A study of online Lok Adalats in Maharashtra found that 40% of cases instituted in district courts can be better resolved through Lok Adalats.[34]However, since there are not a lot of permanent Lok Adalats in the country, and the others are not held at short intervals, they cannot be considered to be a conclusive solution to the issue. They, however, do serve as an ancillary form of reconciliation that the parties can approach.
It is also pertinent to note the role of Mahila Adalats in facilitating the mediation proceedings in matrimonial disputes.[35] These forums have the added advantage of employing all-women mediators coming from similar social class and cultural backgrounds.[36] While these Adalats are more effective in tackling matrimonial disputes in the country, they are significantly less in number compared to the standard SLSA and DLSA mediation centres.
However, the current status, overall, fails to reflect the cherished idea of making mediation more acceptable for family and matrimonial disputes.
Firstly, it is argued that matrimonial advocates serve as significantly better mediators than non-lawyer mediators.[37]When coupled with the empanelment policies of SLSAs,[38] it reveals that not every matrimonial mediator is necessarily a lawyer in the same field of law. It reveals a possibility that within an SLSA Mediation Centre, a mediator who is not well versed with the intricacies of marriage law or dynamics of a marriage dispute may be assigned a dispute of matrimonial nature. This poses serious questions regarding the effectiveness of such mediations, which are attested by the fact that in 2023, the case settlement ratio was less than 1:2 in the Delhi State Legal Services Authority.[39] It has been argued that there is a need to have empathetic mediators who understand the nuances and stakes of matrimonial disputes.[40]
Secondly, there were instances of physical assaults among the parties who had agreed to their dispute being referred to mediation, further highlighting the mediators’ lack of competence, as was evidenced in Delhi recently.[41] A mediator has the duty to prevent the escalation of disputes before the circumstances turn savory. Yet another reality is that in multiple cases, one of the parties refuses to agree to mediation or any reconciliatory attempts. The situation worsens further when the courts hastily pass a divorce decree.[42] Ironically, even the advocates of the mediating parties are not favorable towards settlement, as it kills the possibility of earning fees during the course of the trial.[43] This continues to act as a serious drawback since the parties are often unaware of the legal intricacies of their disputes and rely on the advocates and the advice tendered by them, as a result of which they often tend to get advised not to settle in mediation. Further, having an uncooperative counsel who is hostile towards mediation may prove to hinder the chances of settlement through mediation.
When all these aggravating factors are aggregated together, they tend to form a very unfavourable opinion regarding the effectiveness of the mediation practices being undertaken under the SLSAs and DLSAs. Further, a poor case settlement ratio also means that the parties perceive the mediation proceedings as a mere formality and litigation as the sole mechanism for a conclusive determination of their rights.
The Way Forward
If the issues facing the current mediation practices in India were to be visualized, it would look like the path ahead poses a hurdle at every step. Therefore, it is important to categorically understand and address the shortcomings that mediation practices face at every stage.
The first is the emotional disinterest on the part of the courts as well as the mediators while handling these disputes. The judiciary needs to be made more empathetic towards matrimonial disputes, thereby more prudently referring cases to mediation and trying to build faith among the litigants in the promise of mediation.
There is a glaring need to publicize mediation and its promises as a mechanism within the country, especially among rural households, women, and the poor. Despite the Mediation Act 2023, as well as awareness campaigns and infrastructural reforms being undertaken by the NALSA,[44] there is a lack of public trust in mediation. Hence, an effective public awareness campaign is needed, which, if made successful, can significantly improve the public perception of mediation, as was seen in the case of consumer rights.[45]
Reference can be drawn from the American story of mediation, where a comprehensive, uniform, adaptive, and flexible mediation policy in the United States led them to have case settlements of 78% of all disputes.[46] The U.S. mediation policy is supported by uniform frameworks like the Uniform Mediation Act (UMA),[47] similar to the Mediation Act 2023, adopted in India. The mediators in the U.S. are typically required to develop skills not only in conflict resolution but also in understanding the emotional and psychological aspects of dispute.[48] While the American family system differs vastly from the Indian family structure, the elements of empathy, cultural and psychological sensitivity will reap similar benefits in both scenarios. The Indian realm of mediation can adopt similar practices to those undertaken in the U.S. to improve mediation practices by improving mediation training and ensuring mediators’ understanding and empathy towards the parties. The current mediation proceedings continue to be undertaken as a formality rather than an active effort to settle disputes, and the onus is on the mediators to make this change. Empathy training needs to be made in India, as is the norm in the United States.
Further, care must be taken when dealing with matrimonial mediations as they have a larger socio-cultural and emotional aspect imbibed in them. Various drawbacks within the mediations being undertaken at present have been flagged, as well as the need and the mechanism for effectively eliminating the problems in the current system have been put forth, which will ensure equitable access to justice and dispute management.
References:
[19] Id at 17.
[20] Id. at 18.
[30] Id. at 18.
[42] Id. at 25.
