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Mediation In Divorce





  9/8/2015 Print Article : Mediation In Divorce 1/9 [email protected]'s Profile and detailsanushtha saxena  Mediation In Divorce Source  : http://www. Author  : [email protected] Published on  : January 03, 2013 Mediation In DivorceThe Concept & its efficacy of Alternative DisputeResolution: -“It is the spirit and not the form of law that keeps the justice alive.” LJ Earl Warren. The concept of ConflictManagement through Alternative Dispute Resolution(ADR) has introduced a new mechanism of disputeresolution that is non adversarial. A dispute is basically‘lis inter partes’ and the justice dispensation system in India has found an alternative toAdversarial litigation in the form of ADR mechanism. New methods of dispute resolution such as ADR facilitate parties to deal with the underlyingissues in dispute in a more cost-effective manner and with increased efficacy. In addition,these processes have the advantage of providing parties with the opportunity to reducehostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner, and achieve a greater sense of justice in each individual case. The resolutionof disputes takes place usually in private and is more viable, economic, and efficient. ADR isgenerally classified into at least four types: negotiation, mediation, collaborative law, andarbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposesit can be regarded as a form of mediation Need Of ADR In India:- The system of dispensing justice in India has come under great stress for several reasonsmainly because of the huge pendency of cases in courts. In India, the number of cases filed inthe courts has shown a tremendous increase in recent years resulting in pendency and delaysunderlining the need for alternative dispute resolution methods. It is in this context that aResolution was adopted by the Chief Ministers and the Chief Justices of States in a conferenceheld in New Delhi on 4th December 1993 under the chairmanship of the then Prime Minister and presided over by Chief Justice Of India. It said: The Chief Ministers and Chief Justiceswere of the opinion that Courts were not in a position to bear the entire burden of justicesystem and that a number of disputes lent themselves to resolution by alternative modes suchas arbitration, mediation and negotiation. They emphasized the desirability of disputantstaking advantage of alternative dispute resolution which provided procedural flexibility, savedvaluable time and money and avoided the stress of a conventional trial .In a developing country like India with major economic reforms under way within theframework of the rule of law, strategies for swifter resolution of disputes for lessening the burden on the courts and to provide means for expeditious resolution of disputes, there is no better option but to strive to develop alternative modes of dispute resolution (ADR) byestablishing facilities for providing settlement of disputes through arbitration, conciliation,mediation and negotiation.  9/8/2015 Print Article : Mediation In Divorce 2/9 Alternative dispute resolution (ADR) (also known as external dispute resolution in somecountries, such as Australia) includes dispute resolution processes and techniques that act as ameans for disagreeing parties to come to an agreement short of litigation. ADR is generallyclassified into at least four types: arbitration, conciliation, negotiation, mediation.Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enactedto accommodate the harmonisation mandates of UNCITRAL Model. To streamline the Indianlegal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an optionfor the settlement of disputes outside the court. It provides that where it appears to the courtthat there exist elements, which may be acceptable to the parties, the court may formulate theterms of a possible settlement and refer the same for arbitration, conciliation, mediation or  judicial settlement.Due to extremely slow judicial process, there has been a big thrust on Alternate DisputeResolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairlystandard western approach towards ADR, the Lok Adalat system constituted under NationalLegal Services Authority Act, 1987 is a uniquely Indian approach. What Is Mediation? Mediation is not something new to India. Centuries before the British arrived, India hadutilized a system called the Panchayat system, whereby respected village elders assisted inresolving community disputes. Such traditional mediation continues to be utilized even todayin villages. Also, in pre-British India, mediation was popular among businessmen. Impartialand respected businessmen called Mahajans were requested by business association membersto resolve disputes using an informal procedure, which combined mediation and arbitration.Another form of early dispute resolution, used by one tribe to this day, is the use of panchas,or wise persons to resolve tribal disputes. Here, disputing members of a tribe meet with a pancha to present their grievances and to attempt to work out a settlement. If that isunsuccessful, the dispute is submitted to a public forum attended by all interested members of the tribe. After considering the claims, defences, and interests of the tribe in great detail, the pancha again attempts to settle the dispute. If settlement is not possible, the pancha renders adecision that is binding upon the parties. The pancha's decision is made in accordance with thetribal law as well as the long-range interests of the tribe in maintaining harmony and prosperity. All proceedings are oral; no record is made of the proceedings or the outcome.Despite the lack of legal authority or sanctions, such mediation processes were regularly usedand commonly accepted by Indian disputants.Mediation bears a striking resemblance, in some respects, to the ancient dispute resolution processes. In mediation the parties are encouraged to participate directly in the process. Theexpanded framework of discussion in mediation consists of both the applicable law and theunderlying interests of the parties.The mediator, an expert in the process of dispute resolution, controls the proceedings, muchlike a tribal chief serving in the role of peacemaker. But under the ancient methods if mediation failed, the same person was authorized to render a binding decision. In India, while judges have been quick to recognize increased use of mediation as a helpful mechanism for reducing case backlogs and delays, Indian lawyers have not rushed to embrace mediation. As  9/8/2015 Print Article : Mediation In Divorce 3/9 with American lawyers in the early 1980's, Indian lawyers are conservative. They do not likechange and are reluctant to expose their clients to the uncertain risks of an unknown ADR  process. Also, understandably, Indian lawyers view mediation as potentially depriving them of income by settling cases prematurely and thereby obviating legal fees that would otherwise beearned. The same has been true for American lawyers during the growth of mediation in theUS over the last twenty (20) years. In the first place, by their early acceptance and use of mediation, lawyers became not only the best trained and most qualified mediators(incorporating their mediator work into their law practices), but the lawyers who did not become mediators became the gatekeepers for mediation, selecting over 80% of the cases thatare mediated and choosing the mediators for such cases.Mediation is an informal dispute settlement process run by a trained third party, called amediator. Mediation is intended to bring two parties together to clear up misunderstandings,find out concerns, and reach a resolution. The process is voluntary. During the mediation, eachside will present its view of the issue, and the mediator will work with each side to attempt towork out a settlement. At the end of the process, the mediator can present his or her findingsand present a potential solution to the issue. The mediation process, unlike arbitration, is non- binding; that is, the mediator does not impose a decision on the parties, but he/she attempts to present a solution that is acceptable to both parties.Mediation can be used in divorces, real estate, and labour bargaining, and in other disputes, inan attempt to avoid taking a case to court.Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties with concrete effects. Typically, a third party,the mediator assists the parties to negotiate a settlement. Disputants may mediate disputes in avariety of domains, such as commercial, legal, diplomatic, workplace, community and familymatters. The mediator acts as a neutral third party and facilitates rather than directs the process. Mediators use various techniques to open, or improve, dialogue between disputants,aiming to help the parties reach an agreement. Much depends on the mediator's skill andtraining. As the practice gained popularity, training programs, certifications and licensingfollowed, producing trained, professional mediators committed to the discipline. The Advantages Of Mediation There are various advantages of mediation which can be used in divorces, real estate, andlabour bargaining, and in other disputes, in an attempt to avoid taking a case to court. Some of them are cost, confidentiality, control, mutuality, compliance and support.Cost-while a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels.While a case in the hands of a lawyer or a court may take months or years to resolve,mediation usually achieves a resolution in a matter of hours. Taking less time meansexpending less money on hourly fees and costs. Confidentiality—while court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and themediators know what happened. Confidentiality in mediation has such importance that in mostcases the legal system cannot force a mediator to testify in court as to the content or progressof mediation. Many mediators destroy their notes taken during a mediation once thatmediation has finished. The only exceptions to such strict confidentiality usually involve childabuse or actual or threatened  9/8/2015 Print Article : Mediation In Divorce 4/9 Control—Mediation increases the control the parties have over the resolution. In a court case,the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jurycannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.Compliance—because the result is attained by the parties working together and is mutuallyagreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement.The mediated agreement is, however, fully enforceable in a court of law.Mutuality—Parties to mediation are typically ready to work mutually toward a resolution. Inmost circumstances the mere fact that parties are willing to mediate means that they are readyto move their position. The parties thus are more amenable to understanding the other party'sside and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute.Support—Mediators are trained in working with difficult situations. The mediator acts as aneutral facilitator and guides the parties through the process. Process Of Mediation But this process is informal and not binding and the parties may deviate from this process andfollow some other process of their own choice.The mediator begins by welcoming the parties and introducing himself/herself. The mediator then outlines the process and the roles of the mediator, the parties, and attorneys (if present).The mediator ends the introduction by explaining the ground rules for the process. Themediator then asks for statements from each party. Both parties have an opportunity to telltheir story about what happened, from their viewpoint. Often, these stories are emotional. Themediator may ask clarifying questions, but typically the parties do not question each other.After both parties have spoken, the mediator may ask more questions, both to clarify the issuesand to provide the other party with greater understanding. At this point, the mediator may ask the parties to (separate for the purpose of discussion). The mediator talks with each party, proposing solutions, trying out scenarios, trying to get commitment to a settlement by both parties. The mediator goes back and forth between the parties during this time, clearing upmisunderstandings, and carrying information, proposals, and points of agreement. Mediation In Divorce  Nowadays, for significant portion of adult and youngsters marital and family relations areneither straightforward nor stable. Within the US, in line with the recent researches 13.8million children, twenty five% of those underneath the age of eighteen, are living with onlyone parent and another 5 million kids in two folks homes live with a biological parent and astep parent. And it's a clear estimation that 0.5 of the marriages can end up in divorce. People prefer to file suits in courts for divorce etc. and it takes a lot of time as many cases are pendingin the courts in India, a country where everyday cases of domestic violence and quarrels areseen in every 2 people out of 10.Therefore, instead of wasting so much of time by goingthrough court formal proceedings a person can go to a mediator for settling disputes. Thesedays, as mediation is very common, some states of the US have quite constant and broad useof divorce mediation e.g. Taxes and Connecticut. To save time and energy, it is necessary thatalternative like mediation should be adopted in large number which is the best method.