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Mediation

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MEDIATION

What is Mediation?

  • Mediation is a customary procedure ordered by family courts for civil suits relating to family law like divorce, child custody, etc. The idea of mediation is to allow parties to dispute to sort out their issues between themselves without going through court procedures. All parties to mediation — mediator, petitioners, respondents, and their lawyers are expected to work towards that goal.
  • Following is a brief explanation of the procedure of mediation.
  • The mediation date and time is given by the court to both parties – husband and wife parties. On the date of mediation, both are expected to appear in the Mediation center of the court premises.
  • Mediation is conducted/moderated by an expert who is a lawyer by training and does it pro-bono, i.e, without financial remuneration.
  • The mediation process once started can last for maximum of 60 days. It can happen multiple times within this period. At the end of it, the mediation center has to send their report to the court, whatever be the result of mediation – success or failure.
  • Whatever is said during mediation is not used for any legal or court purposes. No written records are kept. So one can say something without fear of being incriminated based on that.
  • If an amicable settlement of the dispute is reached between parties, the mediator will ask the parties to put that in writing. That document will be sent to court. The final agreement will only happen with a court-approved document. So the job of the mediation center is to facilitate reaching mutual agreement and not taking over the job of courts.
  • The physical process of mediation
  • Parties reach the mediation room at the appointed time, accompanied by lawyers. Lawyers are not the main actors here. Their job is not to argue cases or points. They are supposed to facilitate mediation and that is what they usually do in front of the mediator.
  • Mediator explains the steps of mediation. The first discussion is with both parties present. She will ask for some background information from both parties (without asking about dispute or petition). She may ask what grievances the parties have.
  • One party will then leave the mediation room. The mediator discusses the issues with the party in the room to understand their view of the problem/ petition etc. This is called private discussion.
  • After that mediator gives the same opportunity to the other party in private discussion.
  • Finally, both parties again meet with a mediator. The mediator will try to do the best effort to arrive at some kind of settlement after understanding issues /points raised by both parties. If more time and effort is required for parties to think over, then the mediator will give the next date and time of mediation.

Types of Mediation

There are two types of mediation:

Mediation through court- Section 89 of the Code of Civil Procedure, 1908 deals with the mediation for pending cases in the court which are referred by the court itself.

Private mediation- Private service is given by qualified mediators. Free service is provided to the court or public members to resolve their disputes regarding any matter. Private Mediation is used to resolve the disputes pending in court and pre-litigation disputes.

Advantages and Disadvantages

There are certain advantages and disadvantages to the mediation process for divorce.

Advantages: Mediation cuts the price and the long process of litigation. It is a confidential and ethical process and does not harm the sentiments of either party. A neutral person assists the matter and hence, derives a conclusion that fits perfectly for both parties. Therefore, it is a neutral process. Mediation is a simple and flexible process and does not need much formality.

Disadvantages: Under the mediation process, the mediator cannot compel or force either party to cooperate. It is one’s choice whether to co-operate or not. Hence, the divorcing couples should first try to solve the problem on their own and then only go for mediation if no results are found.

Who is a Mediator?

Mediator is a neutral third person who helps parties to compromise by facilitating discussion between the parties: directly, by helping them in communication, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options to solve the dispute and emphasizing that it is the parties’ own responsibility for making decision which affects them; without imposing any terms of settlement on either party.

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