Essay on Mediation

7/28/2019 Essay on Mediation

1/11

FAMILY LAW

1 | T H I R D S E M E S T E R

.The Rule of Law, which is so important, must run closely to the Rule of Life. It

cannot go off at a tangent from lifes problems and be an answer to problems which existed

yesterday and are not so important today. It has no deal with todays problems. And yet law,

by the very fact that it represents something basic and fundamental, has a tendency to bestatic. That is the difficulty, that it must not be static, as nothing can be static in the changing

world

The words quoted above of late Pt. Jawaharlal Lal Nehru, if applied to the present justice

delivery system, we would find that our system is fundamental but at same time it is also

static, which would negate the basic object of law i.e. to give justice.

The traditional system of dispute resolution in India is based on the same old laws (with some

changes) laid down by the British. The system which was justifiable at that period of time,

but what the present social conditions claim is a change for the betterment.

Following are various drawbacks of the traditional system of dispute resolution mechanism.

Procedural Delays: The procedural mechanism of the legislation such as provided inThe Indian Evidence Act, Indian Penal Code & Civil Procedure Code is very lengthy

causing inordinate delay in the dispute resolution.

Increasing Workload on Judiciary: Due to the procedural delays number oflitigations keeps on pending ultimately resulting in the increase of burden on the

Judiciary added by the new disputes.

Lack of control over proceedings: The traditional dispute resolution system lacksthe control which results in the stretching of the litigation at the whims & fancies of

the advocates and the reluctant party, which finally delays the justice.

Not easily accessible: Due to the fix Venue i.e. the courts which situated permanentlyin a particular place, makes it difficult for a common man to have easy access to it.


2/11

FAMILY LAW


Cost: The cost which an ordinary litigant has to pay for the proceedings, including theAdvocates fees is indeterminate which frustrates the litigant after some time.

Thus, ultimately this all leads to delay in justice and as all of us know Justice delayed isJustice denied. This poses a big dilemma before a lay litigant, that on one hand he wants

justice and on the other hand he may or may not get it at the cost of inordinate delay.

The solution to the above dilemma can be answered by the observation of Fredric, Justice is

never given, it is a task to be achieved.

Thus, an individual can get justice provided he takes efforts to achieve it. The present paper

has tried to put forth how justice can be achieved through the various A.D.R. instead of the

various traditional litigating procedures.

The term A.D.R implies a mechanism of resolving dispute by the means other than the

regular court proceedings. While saying that it is important to note that ADR is not a

substitute to the regular courts, in other words ADR is not to supplant the courts but to

supplement it. The upcoming challenges before the law due to globalization and, increase in

the number of litigations in ordinary court of law have led to the emergence of the Alternative

Dispute Resolution.

There are basically three types of Alternative Dispute Resolution namely:

ARBITRATION CONCILIATION MEDIATION

Now, I will be shifting my attention and focussing on MEDIATIONas one of the process of

Alternative Dispute Resolution and explain the various aspects attached with the same.

WHAT IS MEDIATION

Mediation, by comprehension of a layman it is to sort out through someone.


3/11

FAMILY LAW


Mediation is the disputes resolving mechanism where, a third party i.e. mediator attempts to

settle the disputes, who examines the claims of the parties and assists the parties in their

negotiations to settle their disputes. Thus in conciliation the duty of the conciliator is to give

advice either orally or in writing, where as the role of mediator is more to persuade the partiesin order that they find amicable solution to their dispute. Like conciliation mediation may be

ad hoc or institutional.

Mediation is an informal process during which an impartial third party, the mediator, assists

disputing parties in reaching a mutually acceptable agreement regarding their dispute. The

mediation session is intended to identify pertinent issues, clarify any misunderstandings,

explore solutions, and negotiate an agreement.

CHARACTERISTICS OF MEDIATION

a) It is voluntary process.b) The parties are free to withdraw from the mediation at any time without either for

penalty or adverse effect.

c) No agreement is required.d) It is not binding but once there is an agreement and settlement term then it becomes

binding.

HOW DOES MEDIATION WORK

At the mediation session all parties present a summary of their points of view. Attorneys for

the parties may be present. Typically, the mediator will then meet privately (caucus) with

each party to explore more fully the facts and issues of each side. The caucus offers partici-

pants the opportunity to vent anger or frustrations outside the presence of the opposing side.

The mediator usually will continue to caucus alternatively with each party, carrying

settlement proposals back and forth until an agreement is reached. The agreement is then

reduced to writing, and signed by the parties.

ROLE OF THE MEDIATOR


4/11

FAMILY LAW


The mediator is not a judge and does not render a decision or impose a solution on any party.

Rather, the mediator helps those involved in the dispute talk to each other, thereby allowing

them to resolve the dispute themselves. The mediator manages the mediation session and

remains impartial.

TYPES OF DISPUTES WHICH CAN BE MEDIATED

1) Landlord and Tenant2) Neighbor and Community3) Business and Customer4) Employer and Employee5) Divorce and Family6) Juvenile7) Negligence8) Products Liability9) Construction10)Contracts11)Personal and Real Property12)Small Claims13)Other Civil Matters

WHO CAN ACT AS A MEDIATOR

Mediators are usually lawyers, social workers, psychologists or other professionals who have

formal training in mediation.

BENEFITS OF MEDIATION

a) Parties keep control over the outcome of their own problem.b) Disputes can be settled promptly. A mediation session can be scheduled as soon as both

parties agree to use mediation to resolve the dispute.

c) Mediation promotes better relationships through cooperative problem-solving andimproved communication.

d) Both facts and feelings are considered with the help of an impartial mediator.


5/11

FAMILY LAW


e) Mediation is private and confidential. The mediator and parties must maintain,


6/11

FAMILY LAW


to the full extent required by law, the confidentiality of the information disclosed during

mediation.

f) Mediation is voluntary, and may be terminated at any time by a party or the mediator.Although in court-referred mediation the parties may be ordered to attend a mediationsession, any agreement is entirely voluntary. In the absence of agreement, the parties

retain their right to take the dispute before a judge or jury.

g) Mediation costs may be significantly less than taking a case to court, especially ifmediation is chosen prior to filing a lawsuit.

Thus, mediation will be successful only in the cases:

If the parties are committed to the process. If all the parties have authority to act. If thorough knowledge of the facts of the disputes is available. If the mediator is an expert.HOW IS MEDIATION AN EFFECTIVE TOOL OF ALTERNATIVE DISPUTE

RESOLUTION SYSTEM IN MATRIMONIAL DISPUTES

Conflicts arise in all aspects of our lives and can be resolved in a variety of different ways,

both formal and informal. We are all familiar with formal methods of conflict resolution such

as those provided by civil and criminal law and we are all practiced in the use of informal

techniques such as negotiation and bargaining. Some types of dispute, however, are not easy

to resolve satisfactorily through the courts but at the same time seem difficult for people to be

able to deal with themselves. The primary aim of mediation is not to reduce congestion of the

courts but to repair, with the help of a professional trained in mediation, a breakdown in

communication between the parties. Mediation is also aimed at assisting in the resolution of

such disputes through a process of skilled and principled intervention. This method is

extremely effective in family disputes, especially with children involved and reference to the

court is often unnecessary.In many break-ups time needs to elapse before both parties are

emotionally ready to put the past behind them. Mediation is a confidential way for you to

arrive at fair, long lasting arrangements, thus reducing the pain and trauma associated with

separation or divorce.

With the help of an impartial mediator, or pair of mediators, you can safely air your


7/11

FAMILY LAW


differences and constructively arrive at financial settlements and arrangements for children

that you as a couple choose and work out, rather than having judges or lawyers making

decisions for you. Mediators do not give legal advice and do not represent individuals,

although mediators can be solicitors or other professionals who deal with families. Whenproposals are reached, a summary is drawn up by the mediator(s) which each of you will take

to your own solicitor who will consider whether to turn it into a legally binding agreement,

and also take care of any other legal formalities such as the divorce itself.

There is no hard and fast rule as to when be the case suitable for mediation. At an early stage,

parties may be ready for a settlement process because they may not be too wedded to their

positions and their relationship may not be too fractured by the litigation process. At a later

stage, parties also may be ready to participate in a settlement process because discovery is

mostly done, issues have been narrowed through motions to dismiss or summary judgement

motions, and parties feel more knowledgeable about the likely court outcome and litigation

courts. Mediation can reduce misunderstanding and bitterness and save unnecessary legal

costs. It is not a substitute for legal advice and clients are encouraged to consult solicitors

when necessary.

Mediation for matrimonial disputes includes divorce, separation, annulment, establishment

of paternity, probate and estate disputes, child custody or visitation, or child or spousal

support. It may help the parties reach an agreement and resolve all types of family related

issues. Family mediation is not, however, a therapy. It is intended for and may be of help to,

any person having a conflict with a spouse, a companion, a child, a parent, or with any other

family member. Family mediation helps the parties resolve their own differences on their

own terms allowing them to strengthen their ability to communicate, reach solutions adapted

to their unique personal circumstances, understand and appreciate the needs of other

members of their family, and reach lasting agreements.

A matrimonial mediator assists couples to make joint decisions about their separate futures,

the children, finance, property and other important matters.

Mediation is prevalent today in the United States and in foreign countries, including

Canada and England. In some states, only two percent of filed cases are resolved by

adjudication. Many cases are sent to mediation, and approximately seventy percent settle at


8/11

FAMILY LAW


the mediation conference. Most of the remaining thirty percent settle before trial, often as the

result of the process begun in mediation. For example, the number of reported mediated cases

in Florida increased from 34,000 in 1989 to almost 50,000 in 1991. This movement toward

mediation reflects a relatively long-term trend in Florida's judicial system.

Mediation is especially helpful in family disputes because of the unique nature of family law.

Family matters involve not only the law and facts, but also feelings. An increase in the

number of divorces and of children born outside marriage has caused states to seek methods

other than litigation to solve family disputes involving child visitation, as well as financial

matters. Mediation is one such method.

Mediation is an attractive alternative in family disputes, because it empowers the parties to

devise agreements that meet their specific needs. Unlike the adjudicatory process, the

emphasis in mediation is placed on establishing a workable solution, rather than on

determining who is right or wrong. Decisions are made by the parties, not delegated to a

judge. Mediation of divorce disputes began because of increasing court costs, delay, and

escalation of conflictcaused by dissatisfaction with the traditional method of solving family

matters through litigation. To address this dissatisfaction, lawyers and therapists offered to

help their clients settle cases in a non-adversarial manner.

The mediation process helps reduce parties' hostility and children's trauma from the divorce

process. This is particularly significant when the parties are parents and will remain in

contact after the marital relationship ends. The process encourages the parties to work

together, isolate the issues, and learn through cooperation. Mediation produces stable

agreements that are more likely to inspire long-term compliance by the parties. In addition,

even when the parties do not reach agreement during the mediation process, research

indicates that family cases often settle prior to trial as a result of issues discussed in

mediation.

Many feel that mediation is a particularly appropriate tool in the midst of interfamilial

disputes. However, the appropriateness of family mediation in the context of increasing

awareness of the prevalence of domestic violence has been a point of contention between

those who favour the use of mediation in the family arena and those who contend that


9/11

FAMILY LAW


mediation can be both unfair and potentially dangerous.

Firstly, many argue that womens lack of power relative to men in our society makes it a

weak option. It is argued that due to the presence of domestic violence even the most skilledmediator will likely be not able to compensate for the disparity of power. Some argue that, in

the presence of domestic violence, it is difficult to imagine a batterer coming to a mutually

agreeable settlement with his partner and also that he would comply with something which he

believes is unfair to him. The reality is that apparently her consent will be under duress. Since

mediation is an effort for mutual decision making, presence of domestic violence makes it ill-

equipped. Secondly, using mediation where there has been violence is the belief that it places

the sufferers at a position where there is a high chance of future violence. The batterer gets

the access to a spouse who has been avoiding contact since the separation, leading to

harassing her at the mediation. Thirdly, another criticism against mediation in this context is

that the mediators will not know be aware of violence and since the agreements not being

enforceable and complying, there might not be a total disclosure of facts. Also, at times when

the mediators uses forceful agreement tactics, he forgets the past abuse while the processing

the future. A thought arises in such a situation that these mediating cases regarding domestic

violence will take away violence out of the public eye. When such cases of abuse are sent to

mediation, it provides an idea that violence is not a serious issue, it can be negotiated and this

in turn reduces the criminals answerability and the seriousness of their act.

Analysing the arguments supporting mediation in spite of the presence of domestic violence

include an analysis of the weigh of the benefits and harms.

First argument here being the power balance between the parties to mediation. In case of

presence of domestic violence, balance of power between the parties is never possible.

However, the mediators are trained to balance the power between the parties. In the field of

International mediation, mediation is the preferred method for disputes where there are large

differences of power. There is also a problem of detection of such cases unsuitable for

mediation. Another problem would include the absence of review and complaint

mechanisms. Finally, and perhaps most importantly, there is evidence to support the

argument that mediation in cases of domestic violence can actually have an impact on

lessening the incidents of abuse because the mediation process promotes cooperation, it can


10/11

FAMILY LAW


be utilized as a tool to help break the cycle of violence.

Other arguments include the fact that mediators, unlike judges, can customize the process;

that mediation, unlike the adversarial system, provides a model of future interaction; thatmediation can address issues the court typically would not include; and the general

advantages of mediation, such as it being more efficient and less expensive than the

adversarial process.

All of the problems highlighted above are magnified when mediation is mandatory (for

example, court-ordered) instead of voluntary. Coercion and compulsion seriously weaken the

integrity of the mediation process.

In general, family mediation is valued as an alternative method of resolving family disputes

as it has the advantage of promoting methods of friendly settlement and reducing the

economic and social costs of separation and divorce for families, the state and for society. For

family mediation to be successful, however, the main principles of mediation must be

respected, in particular the independence and impartiality of the mediator and the

confidentiality of the process, for the conduct of which training is required.

Equality of the sexes must be guaranteed in family mediation as in family justice systems in

general. Individual rights must not be sacrificed to cost-effectiveness or the trend towards

alternative conflict resolution methods. Neither sex should be disadvantaged in family

mediation because of power imbalances: be it because one party has suffered abuse, is unable

to fully present its points of view (e.g. because of drug/alcohol dependency or mental health

issues), or is emotionally or financially at a disadvantage (e.g. because one party has looked

after the children and not worked outside the home). When patently unfair agreements are

reached during family mediation resulting from these power imbalances, they must not be

endorsed by the mediator or approved by a judge.

It is essential to ensure that mediation does not lead to an agreement satisfying the wishes of

one party where that party dominates the other in any way whatsoever.

CONCLUSION


11/11

FAMILY LAW


Viewing the number of benefits mediation provides over the adversary system, it would be

rational to use mediation as a compulsory method of dispute resolution. Hence with a proper

planning and training, mediation is to be made compulsory in matrimonial disputes.

Documents

Essay on Mediation