Family Mediation – A Perspective

Dr. Farida Virani

Professor, MET – Institute of Management
Mumbai

Abstract

Amongst the many definitions of mediation, Moore’s classic statement is one that is
widely accepted, describing mediation as a process involving “intervention into a
dispute or negotiation by an acceptable, impartial and neutral third-party who has no
authoritative decision-making power to assist disputing parties in voluntarily reaching
their own mutually acceptable settlement of issues in dispute.” Mediation is clearly a
helping and non-adjudicatory process. This paper concentrates on some perspectives on
matrimonial dispute resolution through the process of mediation. The paper reflects
upon the advantages and limitations of the mediation process and also discuss various
models of mediation. Even though the appeal of mediation is seductive, there are serious
gaps and contradictions between the theory of mediation and how it is actually
delivered. The paper also highlights some repercussions of mediation on fair outcomes
for women disputants and emphasizes the need for more comprehensive researches on
the process and outcomes of matrimonial mediation in the Indian context.

Keywords: Matrimonial Disputes, Alternate Dispute Resolution Landscape, Models of

Mediation, Mediation process outcomes for women

Dr. Farida Virani

 Introduction

India has no central or even state-wise registry of divorce data, family court officials say
the number of divorce applications has doubled and even tripled in cities such as Mumbai,
Delhi, Bengaluru, Kolkata and Lucknow over the past five years, reports Hindustan Times
th
Jan 4 2015. Experts cite a range of reasons: impulse weddings, the waning influence of
the joint family and the growing independence of women for this disturbing trend. The
definition of divorce as per the Black's Law Dictionary defines divorce as "the legal
separation of man and wife." The New Britannica - Webster Dictionary defines divorce as
"a complete legal dissolution of a marriage." Fascinatingly, marriage has a much broader
definition. Britannica - Webster defines marriage as "the institution whereby a man and a
woman are joined in a special social and legal relationship for the purpose of making a
home and raising a family."

It is interesting to note that marriage is viewed as a legal and social union of two people;
however, divorce is merely viewed as the legal termination of marriage. These definitions
in and of themselves highlight one of the basic problems that occur when a couple
chooses to divorce. Namely, although the legal system is equipped to deal with the legal
problems the couple faces when divorcing, it does not address nor is it equipped to deal
with the social and emotional issues confronting the couple. Once the emotional or social
issues are dealt with, it makes the resolution of the legal issues much easier. The presence
of factors like sentiments, emotions, social factors, responsibilities, personal duties, the
mindset of the parties regarding the marriage and life in general makes each matrimonial
disputes distinct and different from others. Taking it a step further, what most couples
really dispute about is not legal or financial issues, but rather arguments fuelled by their
desire to get some form of revenge for a perceived wrong by the other spouse. Hence it is
safe to conclude litigation rarely pays heed to the emotional and the social issues arising
off the conflict and the burgeoning matrimonial cases are challenging for the court to
handle.

Literature Review

The Alternate Dispute Resolution Landscape

Generally there are three main types of formal alternative dispute resolution techniques
that are commonly used. The table below gives an insight in the landscape of ADR
highlighting the difference between Mediation, Arbitration and Litigation to clear the
concepts

Table 1 The Landscape of ADR

Mediation Arbitration Litigation

Parties Negotiate & Arbitrator(s) Judges & Juries
Control
Determine Result Controls Outcome Control Outcome
Non-binding unless
Binding or Usually binding; no Binding; subject to
parties reach
Non-Binding appeal appeal
agreement
Parties Agree on High Risk Jury
Risk Win-Lose
Mutually Acceptable Awards

Dr. Farida Virani

 Terms

Parties Agree on
Neutral or
Parties Agree on Sole Arbitrator, Decision maker is
Decision
Mediator Parties Don’t Pick randomly assigned
maker
Neutral Arbitrator
Confidentiality Private Private Public
Party Collaborative
Adversarial Adversarial
Interaction Negotiation
Highly Structured
Procedure Informal/Flexible Structured Rules of Evidence
and Procedure
Duration Days Months Years
Cost Least More Most
Scope of
Least Less than Litigation Most
Discovery
Adverse result can
Precedent Avoids setting a Avoids setting a
establish future
Effect precedent precedent
precedent
Primarily money
Creative solutions Limited to money
and other legal
Remedy involving any and other legal
rights and
business interest rights and remedies
remedies
Can Preserve/Repair
Impact on Often “Burns the
Existing “Burns the Bridge”
Parties Bridge”
Relationships

Mediation Practices As Reflected In Legislation

The Supreme Court has held the right to speedy trial a manifestation of fair, just and
reasonable procedure enshrined in Article 21. A speedy trial encompasses within its sweep
all its stages including investigation, inquiry, trial, appeal, revision and re-trial. The same
has received recognition from the “legislature” as well in the form of introduction of
“Alternative Dispute Resolution” (ADR) Mechanism (ADRM) through various statutes.
Mediation is a method under Section 89 of the Code of Civil Procedure enacted by the
Parliament, in which a mediator, an impartial third party, helps solve family disputes by
encouraging the participants' voluntary agreement. The Hindu Marriage Act 1955, the
Special Marriages Act 1954 and the Family Courts Act 1984, require the court in the first
instance to attempt mediation between parties. Section 9 of the Family Court Act, makes is
it mandatory to settle a matrimonial dispute in relation to maintenance, child custody,
divorces etc. through the process of mediation. DNA July 14th 2014 reports, ‘Of the 35,000
odd cases referred to mediation by the family court from 2007 to 2014, more than 20,000
were settled through mediation’.

Mediation is an Alternative Dispute Resolution (ADR) method in which a mediator, an

impartial third party, helps solve family disputes by encouraging the participants'
voluntary agreement. Amongst the many definitions of mediation, Moore’s classic

Dr. Farida Virani

 statement is one that is widely accepted, describing mediation as a process involving
“intervention into a dispute or negotiation by an acceptable, impartial and neutral third-
party who has no authoritative decision-making power to assist disputing parties in
voluntarily reaching their own mutually acceptable settlement of issues in dispute. The
mediation can be used for almost all types of conflict as an alternate dispute resolution
process. Mediation and arbitration processes are also used in the corporate world to resolve
and settle disputes out of court.

Matrimonial Disputes – A Viewpoint

Matrimonial disputes and divorce is both very personal and a common phenomenon
globally. Theoretical perspectives on divorce have ranged from macro-sociological
theories of the role of divorce in the family system to micro-level perspectives on the
processes conducive to marital instability (Kitson & Raschke, 1981). Divorces can be
analyzed as events, that is, the decision to leave a partnership and the ending of the
marriage. However, they are often preceded by a long process of ending the relationship,
which can include estrangement from the spouse, stress, conflicts, and even violence
(Amato, 2000), and, as mentioned, the legal procedures dissolving the marriage may last
well after both spouses consider the marriage ended. Thus, defining and measuring
divorce—when it starts and when it ends—can be difficult.

It has long been recognized that divorce can result in turmoil for families, especially for
the children involved. Divorce litigation is an adversarial process where couples spar
against each other. This encourages polarized and positional thinking constantly harping
on each other’s flaws. Further, litigation discourages parental communication, cooperation
and resists a more mature thinking about children’s needs at a critical time of change and
upheaval. At its worst divorce aggravates inter-parental tension, reduces contact with non-
resident parent, induces changes to school, housing, and/or financial resources and creates
a lack of opportunity for children to express their feelings. Many researchers have
concluded that most children experience adverse short-term reactions to their parents’
divorce. A smaller, but still significant, proportion suffers long-term adjustment
difficulties. Short term consequences may include: sadness, fears, uncertainty, and
unrealistic expectations. Behavioral disorders, poor academic performance and difficulties
with the opposite sex are among the long term problems most frequently reported (Robert
Emery & Melissa Wyer, 1987). A research by Brenda Bacon and Brad McKenzie in 2004
reported, children of divorce also exhibit higher levels of externalizing behaviors (for
example, aggressive, impulsive and problematic school behaviors) and internalizing
behaviors (for example, anxiety, depression, and withdrawal).

Danielle (2012) reasons a change in recent trend stating, ‘there is a growing belief among
therapists, family courts, family scholars and the general public, that a good amicable
divorce can result in minimal distress—and even promote the development of both
children and adults. A blameless divorce is one in which both the adults and children
emerge minimally damaged, both emotionally and mentally, it also provides a scope to
have respectable civil exchanges post separation. An amicable divorce involves little
inter-parental conflict, marginal routine changes for the child, maintenance of warm,
secure parent-child relationships and an environment in which children feel comfortable
expressing their feelings.’ Mediation is one of several available options for resolving
family disputes. Family mediation is fast becoming an adjunct, or even an alternative, to

Dr. Farida Virani

 court-based family justice services. It is widely promoted as a constructive, consensual and
low-cost alternative to litigation. Michael Cohen 2004 states, ‘Mediation is a healing path:
it moves parties to reconcile their differences in an atmosphere that, ideally, improves their
connectedness, bridges their separate objectives and integrates rather than fragmenting
through adversarial conduct’.

Divorce Mediation - Strengths and Limitations

Mediation is an Alternative Dispute Resolution (ADR) method in which a mediator, an

impartial third party, helps solve family disputes by encouraging the participants'
voluntary agreement. Amongst the many definitions of mediation, Moore’s classic
statement is one that is widely accepted, describing mediation as a process involving
“intervention into a dispute or negotiation by an acceptable, impartial and neutral third-
party who has no authoritative decision-making power to assist disputing parties in
voluntarily reaching their own mutually acceptable settlement of issues in dispute. The
mediation can be used for almost all types of conflict as an alternate dispute resolution
process. Mediation and arbitration processes are also used in the corporate world to resolve
and settle disputes out of court.

Understanding the difference between interests and positions is a cornerstone of

collaborative negotiation success in the mediation process. Interest based negotiations
create a positive relationship between disputing parties. The numerous advantages of
mediation, which are beneficial in cases involving divorce disputes, are as follows;
 Cost effectiveness: Mediation takes much less time as compared to litigation. Therefore,
even though the fee charged by mediator may be same as that of the attorney overall one
has to pay lesser as compared to litigation proceedings.
 Confidentiality: The mediation proceeding are strictly confidential in nature, unlike the
courts where public can visit anytime and is a spectator to someone else’s tragedy.
 Control: Mediation is an enabling provision which enables the parties to exercise some
control over the resolution. In litigation, judges or jury exercise the ultimate control. This
helps in arriving at a mutually agreeable solution between parties.
 Compliance: Mediation proceedings are carried out to obtain consensus amongst parties
regarding a solution that may be either proposed by the mediator or by either of the
parties. Therefore, there is generally, compliance by the parties. According to the
Arbitration & Conciliation Act, 1996, the mediated agreement is fully enforceable in a
court of law. This also reduces expenses as there is the elimination of the need to employ a
lawyer for enforcement of the decree.
 Mutuality: There is a mutual agreement between parties to work towards reaching a
solution that is acceptable to both. They are ready to make some adjustments towards
their interests and claims. This preserves the relationship between parties.
 Support: Mediators are trained in working with difficult situations. The mediator acts as a
neutral facilitator and guides the parties through the process.

It is prudent to also look at some of the shortcomings of divorce mediation. Failed

mediations could result in;
 Waste of time, money and efforts if negotiations fail the individuals must go into the
litigation process all over again

Dr. Farida Virani

 Incomplete or unduly favorable to one spouse. If the mediator is inexperienced or
gender biased, the outcome could be unfavorable for another spouse.
 Failure to uncover unaccounted hidden financial assets. Since the process requires all
financial information to be voluntarily disclosed and there is no subpoena of records; a
smart spouse could potentially hide assets/income, leaving the weaker spouse or children
penniless.
 Reinforced unhealthy behavior patterns. If one spouse is dominating and the other is
submissive, the final settlement may not be fair.
 Fuelling harsh e m o t i o n s . The spouse who has a propensity for physical/mental stress
or drugs / alcohol abuse is at the risk of not managing emotions well resulting in health
issues

Models of Mediation

Although the word “mediation” implies a particular type of dispute resolution process,
there are three main models of mediation in practice: facilitative, evaluative and
transformative. Some mediators use a mix of styles, depending on the case. Facilitative
mediator facilitates a conversation between the parties, and for the most part the parties
remain in the same room. By asking questions, summarizing what he or she has heard, and
directing the discussion, the mediator helps illuminate the parties’ individual points of
view, their interests and their needs. Through this process the parties are frequently able to
reach a mutually acceptable solution of their own creation. Generally this model of
mediation is best used for resolving simple transactional and workplace disputes. Like
Facilitative mediation, Transformative mediation presupposes that the parties should
create their own solution. Transformative mediation goes a step further, however, in
moving the parties towards full recognition of each other’s interests and needs, and in
transforming their relationship. This style of mediation is largely suited for marital
disputes. The Evaluative style of mediation is similar to a court settlement conference. The
parties remain in separate rooms, for the most part, and the mediator “shuttles” back and
forth between the parties. Usually the mediator evaluates the legal merits of each party’s
case, pointing out weaknesses in one or both party’s positions. The focus is on the law,
rather than on the underlying needs and interests of the parties. This type of mediation is
largely suited for business and contractual disputes.

Narrative mediation is a relatively new style of mediation that focuses on creating a new
"story" or a new "narrative" to understand and reshape the conflict. Narrative mediation is
a very specific method of mediation and requires extensive training. Often narrative
mediators have a mental health background. In Scandinavia, Denmark in particular,
narrative mediation is used quite widely, New Zealand and Australia, too has had a long
association with narrative practice. In Canada, it is used in healthcare, in organizational
conflicts and in education.

Implications of Mediation on Fair Outcomes for Women

Matrimonial disputes can shake the entire social fabric of existing families and can have
long term effect on the disputants as well as children of the divorced couple. Past research
has shown the costs of family breakdown are borne more heavily by women than men, and
that the justice system has often exacerbated the gendered impact of divorce. Yet there is
cause for concern that mediation services, as presently provided, simply reproduce the
same problems in a more private, less visible form. To arrive at a fair and equitable

Dr. Farida Virani

 agreement between parties (disputing spouses), full disclosure of financial information,
including assets and debts, is essential. Critics have identified non-disclosure of all
financial information and assets as a barrier to access to justice for women in the
traditional court system. This issue of disclosure can often be a problem during mediation
as well. Therefore, the non-disclosure of full and frank financial information can act as a
barrier to women in achieving a fair and equitable agreement through the mediation
process. Parties who use mediation to settle family disputes are generally encouraged to
make agreements with which they can live. In some cases though, such mediated
agreements may not always be in the best interests of the women from a legal standpoint.
A significant amount of the research literature from the western world is focused on the
inappropriateness of mediation for women who are exiting from an abusive relationship.
Experts opine that mediation is not an appropriate alternative for those couples, where
there is a power imbalance or history of abuse. They were also in agreement that one
indicator of a power imbalance is if one party exercises absolute control over the financial
and day-to-day decisions of the other party and there is a history of physical, mental and
emotional abuse. In many cases the custody of the children is given to the mother, with
visitation rights and provision of maintenance to the father. In majority of such cases it has
been noticed the male spouse remarries, starts a new family and gradually withdraws from
his prior responsibilities, leaving the former wife solely saddled with the responsibilities of
the children and inadequate means to meet them.

Suggestions

While some mediation proponents and service providers are aware of the potential
disadvantages for women clients, resources and political will are required to address these
shortcomings. There is no comprehensive published research on this topic in the Indian
context and hence exhaustive research in various aspects of mediation (both process and
outcomes) must be encouraged before suggesting any policy decisions. Research in these
areas must be supported through government and educational grants. Mediation as a
process is gaining popularity globally and also in India. Law schools and other
educational institutes should take a lead and encourage short term and long term
certifications and training in this domain.

Dr. Farida Virani

 References

Amato, P.R. (2000). The Consequences of Divorce for Adults and Children, Journal of
Marriage and Family, 62, 1269- 1287

Bacon & McKenzie (2004), Parent Education after Separation/Divorce: Impact on the Level
of Parental Conflict on Outcomes 41(1) Family Court Review 85

Danielle Gauvreau, (2012), Mediation versus Litigation: Examining Differences in Outcomes

amongst the Children of Divorce, Riverdale Mediation, Retrieved from
http://www.riverdalemediation.com/wp-content/uploads/2009/07/Gauvreau-Mediation-
vslitigation.pdf

Furtado R (2016), Use of Mediation during Divorce Proceedings in India, Retrieved from,
https://blog.ipleaders.in/use-mediation-divorce-proceedings-india/

Goundry, Peters et al (1998) Family Mediation in Canada: Implications for Women’s

Equality, ISBN 0-662-26745-1, Retrieved from http://www.swc-cfc.gc.ca/

Joshi, Gupta ( 2013), A Critical Study on the Marriage Matrimonial Disputes and Divorce
with Mutual Consent, IJEAR Vol. 3 Issue 1, ISSN 2348 -0033 online

Kitson and Raschke (1981) Divorce research: what we know; what we need to know. Journal
of Divorce 4 (Spring): 1-37

Kleber D. (2007). Basic Principles of Mediation 2007, Retrieved from http://www.accord-

adr.com/Article1.htm

Michael Cohen 2004, Mediation and Healing, Retrieved from

http://www.mediate.com/articles/cohenm1.cfm

Robert and Wyer, (1987), Divorce Mediation. American Psychologist 42:472–480

The Hindustan Times, 4th Jan (2015), Retrieved from http://www.hindustantimes.com/sex-

and-relationships/how-and-why-number-of-young-indian-couples-getting-divorced-has-risen-
sharply/story-mEuaEoviW40d6slLZbGu6J.html

Wilensky (1995), New York Law Journal, Retrieved from

http://aaml.org/sites/default/files/alternative%20dispute%20resolution-mediation.pdf

Dr. Farida Virani

 Bibliography

Bryan, Penelope E (1992), Killing Us Softly: Divorce Mediation and the Politics of Power,
Vol. XL Buffalo Law Review 501

Gagnon, Andree G. (1992), Ending Mandatory Divorce Mediation for Battered Women,
Harvard Women’s Law Journal pg. 272

Leitch, M. (1986/7), The Politics of Compromise: A Feminist Perspective on Mediation,

14/15 Mediation Q. 163

The Law Senate, Courts to settle Matrimonial Disputes at First under Mediation, Retrieved
from http://www.lawsenate.com/news/courts-to-settle-matrimonial-disputes-at-first-under-
mediation.html

Dr. Farida Virani