Family Mediation – A A Perspective Dr. Farida Virani Professor, MET – MET – Institute Institute of Management Mumbai
Abstract
Amongst the many definitions of mediation, Moore ’s classic statement is one that is widely accepted, describing mediation as a process involving “intervention “intervention into a dispute or negotiation by an acceptable, impartial and neutral third-party who has no authoritative decision-making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.” dispute.” Mediation is clearly a helping and non-adjudicatory process. This paper This paper concentrates on some perspectives on matrimonial dispute resolution through the process of mediation. The paper reflects upon the advantages and limitations of the mediation process and also discuss various models of mediation. Even though though the appeal of mediation is seductive, s eductive, there are serious gaps and contradictions between the theory of mediation and how it is actually delivered. The paper also highlights some repercussions of mediation on fair outcomes for women disputants and emphasizes the need for more comprehensive researches on the process and outcomes of matrimonial mediation in the Indian context.
Keywords: Matrimonial Disputes, Alternate Dispute Resolution Landscape, Models of Mediation, Mediation process outcomes for women
Introduction
India has no central or even state-wise registry of divorce data, family court officials say the number of divorce applications has doubled and even tripled in cities such as Mumbai, Delhi, Bengaluru, Kolkata and Lucknow over the past five years, reports Hindustan Times th Jan 4 2015. Experts cite a range of reasons: impulse weddings, the waning influence of the joint family and the growing independence of women for this disturbing trend. The definition of divorce as per the Black's Law Dictionary defines divorce as "the legal separation of man and wife." The New Britannica - Webster Dictionary defines divorce as "a complete legal dissolution of a marriage." Fascinatingly, marriage has a much broader definition. Britannica - Webster defines marriage as "the institution whereby a man and a woman are joined in a special social and legal relationship for the purpose of making a home and raising a family." It is interesting to note that marriage is viewed as a legal and social union of two people; however, divorce is merely viewed as the legal termination of marriage. These definitions in and of themselves highlight one of the basic problems that occur when a couple chooses to divorce. Namely, although the legal system is equipped to deal with the legal problems the couple faces when divorcing, it does not address nor is it equipped to deal with the social and emotional issues confronting the couple. Once the emotional or social issues are dealt with, it makes the resolution of the legal issues much easier. The presence of factors like sentiments, emotions, social factors, responsibilities, personal duties, the mindset of the parties regarding the marriage and life in general makes each matrimonial disputes distinct and different from others. Taking it a step further, what most couples really dispute about is not legal or financial issues, but rather arguments fuelled by their desire to get some form of revenge for a perceived wrong by the other spouse. Hence it is safe to conclude litigation rarely pays heed to the emotional and the social issues arising off the conflict and the burgeoning matrimonial cases are challenging for the court to handle. Literature Review The Alternate Dispute Resolution Landscape
Generally there are three main types of formal alternative dispute resolution techniques that are commonly used. The table below gives an insight in the landscape of ADR highlighting the difference between Mediation, Arbitration and Litigation to clear the concepts Table 1
Control Binding or Non-Binding Risk
The Landscape of ADR Mediation
Arbitration
Litigation
Parties Negotiate & Determine Result Non-binding unless parties reach agreement Parties Agree on Mutually Acceptable
Arbitrator(s) Controls Outcome
Judges & Juries Control Outcome
Usually binding; no appeal
Binding; subject to appeal
Win-Lose
High Risk Jury Awards
Terms
Neutral or Decision maker
Parties Agree on Mediator
Confidentiality
Private
Party Interaction
Collaborative Negotiation
Parties Agree on Sole Arbitrator, Parties Don’t Pick Neutral Arbitrator Private
Decision maker is randomly assigned Public
Adversarial
Adversarial
Procedure
Informal/Flexible
Structured
Highly Structured Rules of Evidence and Procedure
Duration Cost
Days Least
Months More
Years Most
Scope of Discovery
Least
Less than Litigation
Most
Precedent Effect
Avoids setting a precedent
Avoids setting a precedent
Adverse result can establish future precedent
Remedy
Creative solutions involving any business interest
Limited to money and other legal rights and remedies
Primarily money and other legal rights and remedies
Impact on Parties
Can Preserve/Repair Existing Relationships
Often “Burns the Bridge”
“Burns the Bridge”
Mediation Practices As Reflected In Legislation
The Supreme Court has held the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. A speedy trial encompasses within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial. The same has received recognition from the “legislature” as well in the form of introduction of “Alternative Dispute Resolution” (ADR) Mechanism (ADRM) through various statutes. Mediation is a method under Section 89 of the Code of Civil Procedure enacted by the Parliament, in which a mediator, an impartial third party, helps solve family disputes by encouraging the participants' voluntary agreement. The Hindu Marriage Act 1955, the Special Marriages Act 1954 and the Family Courts Act 1984, require the court in the first instance to attempt mediation between parties. Section 9 of the Family Court Act, makes is it mandatory to settle a matrimonial dispute in relation to maintenance, child custody, divorces etc. through the process of mediation. DNA July 14 th 2014 reports, ‘Of the 35,000 odd cases referred to mediation by the family court from 2007 to 2014, more than 20,000 were settled through mediation’. Mediation is an Alternative Dispute Resolution (ADR) method in which a mediator, an impartial third party, helps solve family disputes by encouraging the participants' voluntary agreement. Amongst the many definitions of mediation, Moore ’s classic
statement is one that is widely accepted, describing mediation as a process involving “intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no authoritative decision-making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute. The mediation can be used for almost all types of conflict as an alternate dispute resolution process. Mediation and arbitration processes are also used in the corporate world to resolve and settle disputes out of court.
Matrimonial Disputes – A Viewpoint
Matrimonial disputes and divorce is both very personal and a common phenomenon globally. Theoretical perspectives on divorce have ranged from macro-sociological theories of the role of divorce in the family system to micro-level perspectives on the processes conducive to marital instability (Kitson & Raschke, 1981). Divorces can be analyzed as events, that is, the decision to leave a partnership and the ending of the marriage. However, they are often preceded by a long process of ending the relationship, which can include estrangement from the spouse, stress, conflicts, and even violence (Amato, 2000), and, as mentioned, the legal procedures dissolving the marriage may last well after both spouses consider the marriage ended. Thus, defining and measuring divorce — when it starts and when it ends — can be difficult. It has long been recognized that divorce can result in turmoil for families, especially for the children involved. Divorce litigation is an adversarial process where couples spar against each other. This encourages polarized and positional thinking constantly harping on each other’s flaws. Further, litigation discourages parental communication, cooperation and resists a more mature thinking about children’s needs at a critical time of change and upheaval. At its worst divorce aggravates inter-parental tension, reduces contact with nonresident parent, induces changes to school, housing, and/or financial resources and creates a lack of opportunity for children to express their feelings. Many researchers have concluded that most children experience adverse short-term reactions to th eir parents’ divorce. A smaller, but still significant, proportion suffers long-term adjustment difficulties. Short term consequences may include: sadness, fears, uncertainty, and unrealistic expectations. Behavioral disorders, poor academic performance and difficulties with the opposite sex are among the long term problems most frequently reported (Robert Emery & Melissa Wyer, 1987). A research by Brenda Bacon and Brad McKenzie in 2004 reported, children of divorce also exhibit higher levels of externalizing behaviors (for example, aggressive, impulsive and problematic school behaviors) and internalizing behaviors (for example, anxiety, depression, and withdrawal). Danielle (2012) reasons a change in recent trend stating, ‘there is a growing belief among therapists, family courts, family scholars and the general public, that a good amicable divorce can result in minimal distress — and even promote the development of both children and adults. A blameless divorce is one in which both the adults and children emerge minimally damaged, both emotionally and mentally, it also provides a scope to have respectable civil exchanges post separation. An amicable divorce involves little inter-parental conflict, marginal routine changes for the child, maintenance of warm, secure parent-child relationships and an environment in which children feel comfortable expressing their feelings.’ Mediation is one of several available options for resolving family disputes. Family mediation is fast becoming an adjunct, or even an alternative, to
court-based family justice services. It is widely promoted as a constructive, consensual and low-cost alternative to litigation. Michael Cohen 2004 states, ‘Mediation is a healing path: it moves parties to reconcile their differences in an atmosphere that, ideally, improves their connectedness, bridges their separate objectives and integrates rather than fragmenting through adversarial conduct’.
Divorce Mediation - Strengths and Limitations
Mediation is an Alternative Dispute Resolution (ADR) method in which a mediator, an impartial third party, helps solve family disputes by encouraging the participants' voluntary agreement. Amongst the many definitions of mediation, Moore ’s classic statement is one that is widely accepted, describing mediation as a process involving “intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no authoritative decision-making power to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute. The mediation can be used for almost all types of conflict as an alternate dispute resolution process. Mediation and arbitration processes are also used in the corporate world to resolve and settle disputes out of court.
Understanding the difference between interests and positions is a cornerstone of collaborative negotiation success in the mediation process. Interest based negotiations create a positive relationship between disputing parties. The numerous advantages of mediation, which are beneficial in cases involving divorce disputes, are as f ollows; Cost effectiveness: Mediation takes much less time as compared to litigation. Therefore, even though the fee charged by mediator may be same as that of the attorney overall one has to pay lesser as compared to litigation proceedings. Confidentiality: The mediation proceeding are strictly confidential in nature, unlike the courts where public can visit anytime and is a spectator to someone else’s tragedy. Control: Mediation is an enabling provision which enables the parties to exercise some control over the resolution. In litigation, judges or jury exercise the ultimate control. This helps in arriving at a mutually agreeable solution between parties. Compliance: Mediation proceedings are carried out to obtain consensus amongst parties regarding a solution that may be either proposed by the mediator or by either of the parties. Therefore, there is generall y, compliance by the parties. According to the Arbitration & Conciliation Act, 1996, the mediated agreement is fully enforceable in a court of law. This also reduces expenses as there is the elimination of the need to employ a lawyer for enforcement of the decree. Mutuality: There is a mutual agreement between parties to work towards reaching a solution that is acceptable to both. They are ready to make some adjustments towards their interests and claims. This preserves the relationship between parties. Support: Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. It is prudent to also look at some of the shortcomings of divorce mediation. Failed mediations could result in; Waste of time, money and efforts if negotiations fail the individuals must go into the litigation process all over again
Incomplete or unduly favorable to one spouse. If the mediator is inexperienced or gender biased, the outcome could be unfavorable for another spouse. Failure to uncover unaccounted hidden financial assets. Since the process requires all financial information to be voluntarily disclosed and there is no subpoena of records; a smart spouse could potentially hide assets/income, leaving the weaker spouse or children penniless. Reinforced unhealthy behavior patterns. If one spouse is dominating and the other is submissive, the final settlement may not be fair. Fuelling harsh emotions. The spouse who has a propensity for physical/mental stress or drugs / alcohol abuse is at the risk of not managing emotions well resulting in health issues Models of Mediation
Although the word “mediation” implies a particular type of dispute resolu tion process, there are three main models of mediation in practice: facilitative, evaluative and transformative. Some mediators use a mix of styles, depending on the case. Facilitative mediator facilitates a conversation between the parties, and for the most part the parties remain in the same room. By asking questions, summarizing what he or she has heard, and directing the discussion, the mediator helps illuminate the parties’ individual points of view, their interests and their needs. Through this process the parties are frequently able to reach a mutually acceptable solution of their own creation. Generally this model of mediation is best used for resolving simple transactional and workplace disputes. Like Facilitative mediation, Transformative mediation presupposes that the parties should create their own solution. Transformative mediation goes a step further, however, in moving the parties towards full recognition of each other’s interests and needs, and in transforming their relationship. This style of mediation is largely suited for marital disputes. The Evaluative style of mediation is similar to a court settlement conference. The parties remain in separate rooms, for the most part, and the mediator “shuttles” back and forth between the parties. Usually the mediator evaluates the legal merits of each party’s case, pointing out weaknesses in one or both party’s positions. The focus is on the law, rather than on the underlying needs and interests of the parties. This type of mediation is largely suited for business and contractual disputes. Narrative mediation is a relatively new style of mediation that focuses on creating a new "story" or a new "narrative" to understand and reshape the conflict. Narrative mediation is a very specific method of mediation and requires extensive training. Often narrative mediators have a mental health background. In Scandinavia, Denmark in particular, narrative mediation is used quite widely, New Zealand and Australia, too has had a long association with narrative practice. In Canada, it is used in healthcare, in organizational conflicts and in education. Implications of Mediation on Fair Outcomes for Women
Matrimonial disputes can shake the entire social fabric of existing families and can have long term effect on the disputants as well as children of the divorced couple. Past research has shown the costs of family breakdown are borne more heavily by women than men, and that the justice system has often exacerbated the gendered impact of divorce. Yet there is cause for concern that mediation services, as presently provided, simply reproduce the same problems in a more private, less visible form. To arrive at a fair and equitable
agreement between parties (disputing spouses), full disclosure of financial information, including assets and debts, is essential. Critics have identified non-disclosure of all financial information and assets as a barrier to access to justice for women in the traditional court system. This issue of disclosure can often be a problem during mediation as well. Therefore, the non-disclosure of full and frank financial information can act as a barrier to women in achieving a fair and equitable agreement through the mediation process. Parties who use mediation to settle family disputes are generally encouraged to make agreements with which they can live. In some cases though, such mediated agreements may not always be in the best interests of the women from a legal standpoint. A significant amount of the research literature from the western world is focused on the inappropriateness of mediation for women who are exiting from an abusive relationship. Experts opine that mediation is not an appropriate alternative for those couples, where there is a power imbalance or history of abuse. They were also in agreement that one indicator of a power imbalance is if one party exercises absolute control over the financial and day-to-day decisions of the other party and there is a history of physical, mental and emotional abuse. In many cases the custody of the children is given to the mother, with visitation rights and provision of maintenance to the father. In majority of such cases it has been noticed the male spouse remarries, starts a new family and gradually withdraws from his prior responsibilities, leaving the former wife solely saddled with the responsibilities of the children and inadequate means to meet them.
Suggestions
While some mediation proponents and service providers are aware of the potential disadvantages for women clients, resources and political will are required to address these shortcomings. There is no comprehensive published research on this topic in the Indian context and hence exhaustive research in various aspects of mediation (both process and outcomes) must be encouraged before suggesting any policy decisions. Research in these areas must be supported through government and educational grants. Mediation as a process is gaining popularity globally and also in India. Law schools and other educational institutes should take a lead and encourage short term and long term certifications and training in this domain.
References
Amato, P.R. (2000). The Consequences of Divorce for Adults and Children, Journal of Marriage and Family, 62, 1269- 1287 Bacon & McKenzie (2004), Parent Education after Separation/Divorce: Impact on the Level of Parental Conflict on Outcomes 41(1) Family Court Review 85 Danielle Gauvreau, (2012), Mediation versus Litigation: Examining Differences in Outcomes amongst the Children of Divorce, Riverdale Mediation, R etrieved from http://www.riverdalemediation.com/wp-content/uploads/2009/07/Gauvreau-Mediationvslitigation.pdf Furtado R (2016), Use of Mediation during Divorce Proceedings in India, Retrieved from, https://blog.ipleaders.in/use-mediation-divorce-proceedings-india/ Goundry, Peters et al (1998) Family Mediation in Canada: Implications for Women’s Equality, ISBN 0-662-26745-1, Retrieved from http://www.swc-cfc.gc.ca/ Joshi, Gupta ( 2013), A Critical Study on the Marriage Matrimonial Disputes and Divorce with Mutual Consent, IJEAR Vol. 3 Issue 1, ISSN 2348 -0033 online Kitson and Raschke (1981) Divorce research: what we know; what we need to know. Journal of Divorce 4 (Spring): 1-37 Kleber D. (2007). Basic Principles of Mediation 2007, Retrieved from http://www.accordadr.com/Article1.htm Michael Cohen 2004, Mediation and Healing, Retrieved from http://www.mediate.com/articles/cohenm1.cfm Robert and Wyer, (1987), Divorce Mediation. American Psychologist 42:472 – 480 The Hindustan Times, 4th Jan (2015), Retrieved from http://www.hindustantimes.com/sexand-relationships/how-and-why-number-of-young-indian-couples-getting-divorced-has-risensharply/story-mEuaEoviW40d6slLZbGu6J.html Wilensky (1995), New York Law Journal, Retrieved from http://aaml.org/sites/default/files/alternative%20dispute%20resolution-mediation.pdf
Dr. Farida Virani
Bibliography
Bryan, Penelope E (1992), Killing Us Softly: Divorce Mediation and the Politics of Power, Vol. XL Buffalo Law Review 501 Gagnon, Andree G. (1992), Ending Mandatory Divorce Mediation for Battered Women, Harvard Women’s Law Journal pg. 272 Leitch, M. (1986/7), The Politics of Compromise: A Feminist Perspective on Mediation, 14/15 Mediation Q. 163 The Law Senate, Courts to settle Matrimonial Disputes at First under Mediation, Retrieved from http://www.lawsenate.com/news/courts-to-settle-matrimonial-disputes-at-first-undermediation.html
Dr. Farida Virani
