It is a well-known fact that the family is the smallest unit of society. Just like every drop counts, to prevent the fabric of society from any rupture reconciliation should be the first option in case of any family dispute. Due to excessive pilling of cases in courts mediation and negotiation are emerging as credible alternatives to solving a family dispute. As these procedures take into account the emotional aspects of the conflict they provide a more comforting environment to the conflicting parties. These processes also make sure that not only the interest of the couple is taken care of but also that of their children and the family members.  

Family and Matrimonial Disputes

With the growth of the competitive world, marriage has somehow taken a back seat for many. Although the institution of marriage enables couples to settle down and live peacefully, an increasing number of divorce cases make the young generation turn a blind eye to the institution. Divorce is not the only matrimonial dispute that tests a marriage; there are many other families and matrimonial conflicts like guardianship, child custody, domestic abuse, maintenance, etc. More than often it’s the unattended little quarrels that take the form of a serious matrimonial conflict. 

As simple as it might seem to solve a family or a matrimonial dispute, the fact is it’s nothing less than a herculean task. A family dispute not only carries the burden of the facts but also a load of emotions, social pressure, individual ego, financial scenario, and personal outlook. Solving all these issues simultaneously in a courtroom is a strenuous process for the court as well as the disputants. Due to the complex nature of such matters, the legal fraternity has started preferring the Alternative Dispute Resolution (ADR) mechanism as an ideal method to solve such matters. With reconciliation being the primary object the court and the parties have started preferring counseling and other ADR methods like mediation and negotiation. 

The Family Courts Act, 1984 does not give any accurate definition of a family dispute but it explains the term as follows: 

• A suit or proceeding between the parties to a marriage for a decree of a nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
• A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
• A suit or proceeding between the parties to a marriage concerning the property of the parties or of either of them;
• A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
• A suit or proceeding for a declaration as to the legitimacy of any person;
• A suit or proceeding for maintenance;
• A suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

Mediation

Mediation is a form of ADR mechanism. In this process, an impartial person sits to engage contending parties in an elaborate discussion on the point of dispute. The aim of the process is to find a middle path by the neutral mediator. Scholars Folberg and Taylor defined mediation as ”a process in which the participants together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs.”

Mediation works as a counseling session in family and matrimonial disputes. There can be a post or pre-litigation mediation. There are no hard and fast rules to consider mediation as a mode of settlement. Couples can either opt for mediation voluntarily or they can be directed by the court to do so. Many foreign countries like the United States, Canada, and England also provide for solving matrimonial disputes via mediation. As the name suggests mediation helps the conflicted couple get a better view of their relationship. Often it’s the little quarrels that paint the whole sky black; a mediator clears these clouds so that the couples can view their partner’s brighter side. 

Negotiation

Negotiation works in a similar fashion as mediation. In this also communication is channelized between the conflicting parties to reach a settlement. Ginny Pearson Banes has defined negotiation as “a resolution of disagreements using give and take within the context of a particular relationship.” Similar to mediation it involves the sharing of ideas and information and seeking a mutually acceptable outcome. 

Negotiation is confused with compromise but it’s a totally different concept. Compromise is only one of the outcomes of negotiation. Negotiation can also result in a win-win situation or a win-loss scenario. A negotiation may or may not require the presence of a third person. 

Similarities and Dissimilarities

Both the procedures of mediation and negotiation are almost similar. Pointing out a difference between them is like listing the differences between culpable homicide and murder. One of the main differences is that in mediation there has to be a mediator i.e. a third person to paint the bright canvas of the relationship of the conflicting parties. In negotiation, the couples have an option to paint the picture themselves. Due to already existing restraints, a negotiator is appointed or referred so that the canvas does not get smudged again. 

Essential ingredients of both mediation and negotiation are the same. Both the processes require a free flow of communication between the parties, both work with the aim to reach an amicable solution to the dispute. Although the court may direct the parties to go through mediation or negotiation, in a way both are voluntary procedures. Both are characterized as flexible, speedy, and cost-effective. They also give more chances and control to the parties. 

Both the procedures require the parties to have a forging approach, willingness to cooperate, and avoidance of hostility.

What are the benefits?

There are many benefits of getting a family dispute solved via mediation or negotiation. Some of them being:

• Flexible and Speedy 
  If family matters are dragged long they not only affect the conflicting couple but everything around them. A family dispute also causes mental disturbance. Thus a speedy resolution of the dispute is welcomed. Unlike courts where cases end dragged for years, mediation and negotiation serve as valuable alternatives. Further, neither are there any predetermined guidelines on how these processes should be conducted nor any proper procedure which the mediator or the negotiator is required to follow. In these busy times where marriage has taken a back seat the flexible and speedy nature of these ADR processes asserts on the couples to favor reconciliation before taking any hard step. Mediators and negotiators make sure that the process gets scheduled within a week of receiving the notice. The time, place, and the mediator/negotiator can be arranged according to the needs of the parties. 

• Confidential
  When a dispute is referred to any of the above-mentioned procedures by a court after the process completes, the court only concerns itself with its result. The court does not ask how the parties came to that conclusion, what was discussed between them, or what information did they share or ignore. Further, the mediators and negotiators are to strictly uphold the confidentiality clause of the agreement they sign.  This comforts the couple that their fight won’t go beyond the four walls. It also makes them at ease discussing the matter in issue. 

• Neutral
  A mediator’s or negotiator’s credibility can be judged by how impartial he/she is. These processes should be free from bias or pre-decided notions. The job of the mediator/negotiator is to bring forth a clearer image of the dispute and the intentions of the parties so that the parties can settle on a solution. The mediator/negotiator acts just like a court; the only difference being that there are no hard procedural rules to follow. They sit as a neutral judge. They openly accept the contentions of both parties without any judgment. Couples find the confidence that they won’t be judged for their idea of life after marriage. It also makes the couples accept their mistake as they know they won’t be judged. 

• No Records
  Both these processes are not required to follow the lengthy procedures of the Code of Civil Procedure and Evidence Act. This allows them to keep their hands free from making elaborate written records too. No records benefit the parties in having a free conversation without any hesitation. Disputant parties are able to solve the dispute by restructuring the communication gap. 

• Private
  Unlike court proceedings which are attended by other lawyers, clerks, students, and people, a mediation process is private in nature. There is no audience, just the parties, and the mediator/negotiator. Couples feel at ease to talk and in cases of child custody, the child gets a sense of security for his feelings. 

• Mutual Settlement
  In cases where parties themselves agree to any of these procedures, there is a mutual understanding between them that they want to reach a solution. This makes the job of mediator/negotiator easy. In such scenarios, an experienced mediator/negotiator can solve the issue in no time. More often these cases relate to little quarrels where the black clouds have hidden the brighter sky. Mutual consensus to solve the dispute also comes in handy in finding the right solution that is acceptable to both. This makes the process less stressful as the couples have clear intentions. 

• Interest of Children
  When a court hears a matrimonial matter although it has to keep the interest of the child in mind, it is chained by the procedure established by law. Thus, even though if the judge finds that there is a better way of solving a dispute which might benefit the child he/she cannot do so because it might not be the right procedure. Both procedures of mediation and negotiation are free from such clutches. A mediator/negotiator can go to any length so that the decision favors the future of the child.   Further, it allows the children to see their parents cooperating even when they disagree with each other. Often the result of these alternative mechanisms is custody of the child.

• Cost-effectiveness
  Time and Money are two elements that are unquantifiable in today’s life. It is often said time is money nevertheless money stands on a higher ground than time. There is no benefit in opting for a method like this unless it is cost-effective. Besides time and confidentiality, the cost-effective characteristic of mediation and negotiation draws the attention of the conflicting couple.  

Legal Framework

In 2002, the Code of Civil Procedure was amended to add mediation under Section 89. According to the amendment, if the court deems that a matter should be solved amicably through an alternative resolution process, it can refer the matter to arbitration, conciliation, or judicial settlement through Lok Adalats. 

Under Order XXXII-A Rule 3 of C.P.C, the court is duty-bound to make efforts for the settlement of a dispute in every suit or proceedings. If in any such suit or proceedings, it appears to the court, at any stage, that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement. 

In such cases, there is always a chance that the suggested method may or may not succeed. Where the suggested method works out the mediator or the arbitrator is required to submit the final report of the process. When it fails the litigation that was filed in the court based on which the case was referred, is continued. 

Section 23 of the Hindu Marriage Act, 1955 also directs the court to prefer reconciliation in matters like divorce, adoption, guardianship, maintenance, etc. The Special Marriage Act, 1954 under Section 34 provides for a similar provision that the Court should consider reconciliation as the first instance in divorce. Even the Family Courts Act under Section 9 makes it obligatory for the court to strive for settlement in case of family disputes.

Conclusion

It is a saddening reality that although the institutions understand that ADR methods are suitable to solve family and matrimonial disputes they are not advertised to that level. Lack of effective guidelines is also a disgrace for these procedures. The mediation or negotiation procedures’ results are not binding. The non-binding nature of these processes makes the parties lose confidence in the procedure. 

The legislation and judiciary need to understand that these matters cannot be solved only by drafting provisions. They should be widely advertised and promoted. The process has some drawbacks too but these are because our institution has not been vocal about upgrading them. 

Even when the Britishers came to India they tried to regulate every aspect of Indian life but maintained a considerable distance from personal laws. Personal laws are the structuring unit of the society of a State. Even the Britishers were smart enough to not intrude in them; our courts should understand this and encourage ADR methods in family and matrimonial matters.

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Editor’s Note
In this fast-paced world, where individuals are always under some or the other kind of pressure, the institution of marriage has taken a back seat. There are various family and matrimonial disputes that are witnessed today such as disputes concerning child custody, divorce, the validity of a marriage, matrimonial status, property, etc. These disputes concern not only the conflicting couple; it also adversely affects everyone around them.

This article highlights the importance of Alternate Dispute Resolution procedures such as mediation and negotiation for solving such disputes. The article has highlighted certain similarities and dissimilarities between both the procedures as well as their benefits. The author has also explained the legal framework in India regarding both the mechanisms. The author has concluded by saying that these mechanisms should be effectively regulated and the people in our society should be made aware of these mechanisms so that more people could resort to them and benefit from them for the resolution of family and matrimonial disputes.