A recent divorce procedure in India involves the husband-and-wife meeting with a mediator, a neutral third party with training and experience in resolving divorce-related disputes. He assists the husband and wife in using mediation to resolve their conflict.
These days, mediation is frequently considered one of the primary approaches to dispute resolution, especially in matters related to divorce. When individuals first enter a courtroom and undergo a trial, they often seek the most efficient way to settle, and this is where mediation proves to be useful. In this article, let's delve deeper into understanding the significance and process of mediation, particularly in the context of divorce proceedings.
What is Divorce Mediation?
ADR processes like mediation include bringing in a third impartial party to resolve a dispute between two or more parties. This third party acts as a mediator so that the parties can resolve the conflict amicably. Alternative dispute resolution is what the mediation process is. ADR offers a variety of conflict resolution procedures, including negotiation, arbitration, mediation, and conciliation.
Mediation in divorce cases is a process in which a neutral third party, known as a mediator, facilitates communication and negotiation between divorcing spouses. The goal is to help the couple reach mutually acceptable agreements regarding issues such as child custody, property division, and financial matters. It is the ideal procedure to resolve a divorce case because court proceedings take a long time due to a heavy workload.
In some divorce proceedings, the court may also order both parties to participate in mediation so that they might settle their differences out of cour
Who is a Mediator in Divorce Mediation?
The divorce mediator does not provide legal counsel or make divorce-related decisions. He is a neutral third party who only assists the parties in determining the most effective strategy for resolving their conflict.
The mediator must keep the information above confidential. He is not permitted to discuss the case details with anyone. Additionally, since there is no official record of the mediation sessions, there is more confidence in using mediation to resolve the divorce dispute.
Types of Mediation:
The three types of mediation are as follows:
Mediation through court
Court-ordered mediation The Code of Civil Procedure, 1908, Section 89, deals with court-ordered mediation for pending cases that the court has referred.
Private Mediation
Professional mediators offer a confidential service. This service is available for free to the court or the general public to resolve any disputes. Pre-litigation concerns and ongoing court disputes are both handled through private mediation.
Mediation in Divorce
When a couple thinks their relationship can be saved, they go to a mediation center. For resolving problems, meditation centers have their own set of guidelines. Because the mediator works to close a gap between the two parties in order to save the marriage, couples are encouraged to try mediation before going to court. Typically, the court chooses mediators based on their credentials.
Benefits of Divorce Mediation
There are numerous advantages to divorce mediation over traditional court action.
Cost-saving
Mediation is less expensive than going to court to have your case heard. Your court fees and other expenses, such as summons service fees, etc., will be avoided.
Quick Process
Mediation in a court is a quick procedure. A mediator can settle the dispute in about 2-4 encounters. Divorce mediation can take a little longer than other mediation scenarios since divorce issues are so delicate. Numerous issues about the children and the property must also be resolved.
A neutral party acts as a mediator.
Both parties will get help from an impartial third party throughout the mediation process. It suggests that he won't back any cause. He simply suggests and encourages the parties to settle their dispute amicably.
Settlement of the issues
The mediation procedure is nearly complete once the issues in the conflict have been resolved. Mediators work with both parties to find a mutually beneficial solution to the problem through the mediation process. This method fixes the problem in almost all cases.
Confidential Procedure
Divorce Mediation is a confidential process. Although it is not required that a person divulge any personal information during the mediation process, if a person wants to do so in front of the mediator, the information will be kept private. There won't be any public records of what happens in your case either.
Eliminate uncomfortable situations
An individual feels relieved of the tension he would experience in court because of the manner the mediation process is carried out. Talking about family concerns in front of an audience might be challenging. Divorce In the mediation process, there is just one new person present. The person feels less stressed and gains the confidence to express his opinions on the matter.
Independence of action
There are no choices made by the divorce mediator. He exclusively suggests options that will help both parties and enable them to use mediation to settle their disputes. Contrary to a court ruling, the parties are not obligated to settle their disagreement using the mediator's recommendations, and no judgment is imposed on them. The decision to settle all issues relating to the divorce will be mutually agreed upon by the parties.
Control over the process
In divorce mediation, the parties themselves are in charge of the proceedings. The dates for processing, the location to proceed, and even the mediation process, are up to the spouses' discretion. The parties alone will exercise exclusive control.
Communication
There are only three parties in a room throughout the divorce mediation procedure. It promotes communication between the partners so that they can work out the problems that arise during the conflict. The mediation process aids both parties in resolving their differences and averting further disputes.
The decision is not final.
The party has the right to seek out exterior assistance to resolve the conflict. Both the parties and the law are not required to accept the mediator's conclusion in order for the issue to be resolved through mediation. Anytime they choose, they can end the divorce mediation procedure and start divorce proceedings in court.
Disadvantages of Divorce Mediation
A mediator is not allowed to coerce or force the parties to make statements or accept a conclusion reached via the mediation process. Even one of the parties may request to have the mediation procedure halted in the middle of the proceedings. If one party is not collaborating, mediation is meaningless. Both parties must participate for the divorce mediation to be successful.
Conditions under which divorce mediation is not advised
Although divorce mediation is a straightforward process, there are a number of situations where it is not advisable. These scenarios include the following:
Domestic Abuse:
You shouldn't go through the mediation process if there has been domestic violence throughout the divorce. Domestic violence-related divorce is a distinct criminal case. Criminal cases are not resolved via mediation.
Threat to safety:
Because they are public spaces, the courts are regarded as being safer. The mediation procedure takes place elsewhere. Even though it is a safe technique, you should not choose mediation if you believe it could endanger your security.
Fear of children's safety
You shouldn't use mediation to resolve your conflict if you believe that your children's safety was in danger when you made the decision to get divorced. Because a mediator also resolves the Child custody dispute when resolving a divorce case.
Employing an advocate
For the mediation procedure, neither a lawyer nor an advocate is required. However, if your spouse has retained an attorney to represent them in the proceedings, you should likewise do so. He will support you throughout the process and can also offer you, pertinent legal counsel. Every law pertaining to your case is known to a divorce attorney. He is better able to help you.
Untrustworthy Spouse
The mediation process won't be worthwhile for you if you believe your spouse is unreliable and can tell lies to the mediator. Failure, to tell the truth, cannot result in a mediation procedure being successful. You should go to court to handle your issue in such a circumstance.
The spouse wants to postpone the action
You shouldn't proceed with mediation if you believe your husband is attempting to annul the agreements made during the mediation. A mediator cannot command or compel any individual to participate in the mediation process. A person might come up with countless justifications to put off the mediation process if they are unwilling to resolve their dispute.
You and your spouse can use divorce mediation to settle the conflict in a variety of situations where none of the aforementioned requirements apply.
The Process of Divorce Mediation:
Any of these situations may use the voluntary mediation method in a divorce. There are two ways that the mediation process can begin:
- A mediation order is issued by the judge.
- You and your partner have mutually chosen to use mediation to resolve your divorce.
The court may appoint a mediator who is a former judge or a senior advocate and who will be an expert in his field in cases when a judge orders that a disagreement be handled through the mediation procedure. The mediator may also be chosen by the parties with their permission. If you and your spouse have agreed to use mediation to resolve your issues, you can choose to designate the mediator yourself, or you can ask the court to assign one for you.
Before meditation:
A mediator will ask you for assistance or background information regarding your marital, family, and divorce-related concerns after he or she has been appointed. The parties' mediation statement may also be requested in writing by the mediator.
Both parties can be asked to sign a confidentiality agreement by the mediator. The agreement will state that you comprehend that a mediator is not permitted to divulge any truth or private information pertaining to the mediation procedure.
Setting for mediation:
The parties may also choose online mediation at their discretion. However, the parties may choose a location for the mediation session if they feel more at ease with offline mediation. Typically, the mediation meetings take place in a welcoming office or conference room where both parties can attend.
Proceedings of the mediation:
It entirely relies on the mediator whether he chooses to invite both couples to a single room or invites them separately for private sessions. The mediator prefers that the parties meet in private when they are represented by divorce counsel.
Issues under Divorce Mediation:
The mediator will formulate the concerns based on what the parties cannot agree on following the discussion with both spouses. Divorce mediation can address the following issues:
- Property Division After Divorce
- Child Custody
- Parenting time
- Divorce Alimony
- Maintenance
- Retirement
- Taxes
Arguments:
After the issues are defined, the mediator will inform the parties of the issues and encourage them to communicate with one another in order to resolve their differences amicably. The finest solutions to that problem will be offered to the couples by the mediator.
Completion of Arguments:
The mediator will draught an agreement after all conversations and disagreements between the parties have been resolved. There are three possible scenarios:
- Every problem posed has been resolved.
- 50% of the problems have been resolved.
- All of the problems are unresolved.
The mediator will submit his report to the court of law and state that the mediation procedure was successful in resolving the disagreement in the event that none of the problems are settled during the divorce mediation.
However, if all or some of the difficulties are resolved, he will prepare a written statement outlining all the issues that have been resolved and obtain both parties' signatures indicating that they have mutually agreed to settle this.
The problems raised during the divorce mediation can be accepted or rejected by the parties. The mediator will provide his report to the court of law after receiving the signatures of both parties. The report may be accepted or rejected by the court.
The court may begin proceedings on the concerns that cannot be resolved through divorce mediation after approving the report. The divorce mediation statement, in which some of the difficulties were resolved, may also be attached by the court at the time of the final judgment.
Conclusion
The quickest and easiest way to resolve difficulties related to divorce is through mediation, a method applicable in both contested divorce cases and the mutual divorce process. Nobody has more time to resolve an issue through the legal system today. By selecting a mediator online, spouses can settle their differences during the divorce mediation procedure. Due to the overwhelmingly piled cases in the courts, the court is urging more couples to resolve their divorce through mediation.
Frequently Asked Questions
Q. Is mediation compulsory in divorce in India?
Mediation is not compulsory for divorce cases in India. parties have the option to choose alternative dispute resolution methods or proceed with traditional court proceedings.
Q. How long does a divorce take after mediation in India?
The duration of a divorce process after mediation in India varies, lasting up to 7 months based on the complexity of the case.
references:
Settlement of Dispute Outside of Court-https://www.legalserviceindia.com/legal/article-385-section-89-of-cpc-a-critical-analysis.html
Author Bio: Adv. Bhavya Kohli, a distinguished advocate, holds a B.A. LL.B. (Hons.) from the National Law University and Judicial Academy Assam, specializing in Criminal Law and Business Law. With a stellar academic background, Bhavya has cultivated a successful career in legal practice, demonstrating expertise in handling a broad spectrum of legal matters across various jurisdictions. Bhavya has represented clients before esteemed courts, including the Supreme Court of India, High Court of Delhi, District Courts, Consumer Forums, and Arbitral Tribunals. Proficient in drafting legal documents such as opinions, applications, notices, suits, and petitions, Bhavya is adept at navigating civil disputes, criminal litigation, commercial litigation, and matrimonial disputes. Bhavya's participation in conferences, informal courses, and volunteer activities underscores a commitment to continual learning. As a member of the Bar Council of Delhi and the Delhi High Court Bar Association, Bhavya Kohli is well-equipped to deliver outstanding legal representation before the Delhi High Court and district courts in Delhi.
