Mediation is an effective mechanism of alternative dispute resolution involving an amicable and impartial resolution to the disputes between the parties without the need to go through the intricacies involved in litigation. Mediation essentially involves facilitation of settlement of disputes between the parties with the help of a neutral third person- Mediator.
Mediation is an informal and non-adversarial mechanism, which may be practiced in commercial, industrial, family, matrimonial and other disputes. Matrimonial disputes need to be viewed from a humanitarian approach. Litigation in matrimonial matters is not only costly and time consuming but also leads to bitterness, whereas mediation in such matters helps in encouraging collaboration and communication.
This has been affirmed by the Supreme Court of India in the matter of K. Srinivas Rao Vs. D.A. Deepa, wherein all the family courts have been directed to refer matrimonial disputes to mediation in adherence to the provisions under Section 9(1) of the Family Courts Act, 1984. Further, Section 23(2) of the Hindu Marriage Act, 1955 provides that before proceeding to grant any relief under this Act, it shall be the duty of the court to make every effort to bring about reconciliation between the parties provided that nothing contained in the sub-section shall be applicable to proceedings wherein relief has been sought on any of the grounds specified in Clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 13(1).
Mediation in matrimonial disputes requires co-operative negotiations between the spouses in order to mitigate the hostility in the relationship. There exists an element of emotion in conflicts arising between spouses and the same needs to be effectively understood by the Mediator before facilitating amicable settlement between the spouses. Choosing a mediator is the most important aspect of divorce mediation. This mandates that the mediator must be equipped with a set of qualities and must satisfy certain criteria, which need to be taken into consideration while choosing a mediator. Following must be taken into consideration while making the decision:
The mediator must be neutral and impartial person, who has complete, genuine and unconditional faith in the process of mediation and its effective outcome. The mediation must be aimed towards creative and mutually agreeable compromises.
The mediator must not only possess skills and knowledge to facilitate an effective mediation between conflicting spouses, but must also participate in regular updating of skills and knowledge. It is important that the mediator is trained in conflict management and has access to professional consultants on financial or emotional matters. Intensive interpersonal skills may move most divorce mediations towards an amicable resolution. The mediator must know how to frame and discuss spousal support issues with a divorcing couple.
Affordability and ease in process of mediation for both spouses should be taken into consideration. It should flow out of conscious volition of both parties so as to ensure a smooth process without any financial or mental impediments.
There must not exist any conflict of interests of the mediator vis-à-vis the parties to mediation in the nature of direct personal, professional or financial interest in the outcome of the dispute. Further, the mediator must ensure complete disclosure of any such interest and must candidly communicate with the parties about his/her background and experience.
Indulgence of the divorce mediator by investing appropriate amount of time time and compassion is very important for carrying out smooth and effective sessions. The aim of the mediator must be to help the spouses communicate and negotiate. Therefore, sensitivity, alertness and ability to perceive, appreciate and respect needs, interests and sentiments of the spouses is the key requirement.
The mediator must be in control of the proceedings only to the extent so that the parties do not take over the proceedings by way of aggressive behavior and illegal means. From the very beginning, the mediator must aim towards reconciliation of interests of the spouses and not imposition of his/her own understanding of the conflict.
The mediator must be a patient and attentive listener and capable of creating a comfortable environment for the parties to open up. The mediator must be flexible and creative and should be open to the idea of individual and separate sessions in order to allow complete and impartial understanding of the interests of the spouses. This will enable them to understand the areas of conflict vis-à-vis each spouse independently. However, the mediator must not interfere with the parties’ right of self-determination.
The mediator must be neutral and should not dive into generic/judgmental approach. Neutrality in words, manner, attitude, body language and process management must be ensured for even-handed proceedings. Further, the approach of divorce mediator must be free from all kinds of bias- racial, gender, or monetary.
Parties should ensure that the mediator possesses honesty and integrity and would afford them confidential proceedings thereby helping the spouses to keep their dignity and privacy, as well as that of their families, secure.