INTRODUCTION

“My joy was boundless. I had learnt the true practice of law, I had learnt to find out the better
side of human nature and to enter men’s hearts. I realized the true function of a lawyer was to
unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my
time during the twenty years of my practice as a lawyer was occupied in bringing about private
compromises of hundreds of cases. I lost nothing thereby- not even money, certainly not my
soul”.

- Mohandas Karamchand Gandhi

“Discourage litigation; persuade your neighbors to compromise whenever you can. Point out to
them how the nominal winner is often a real loser-in fees, expenses, and waste of time”.

- Abraham Lincoln

The concept of Conflict Management through Alternative Dispute Resolution (ADR) has
introduced a replacement mechanism of dispute resolution that's non adversarial. A dispute is
basically ‘lis inter partes’ and the justice dispensation system in India has found an alternative to
Adversarial litigation in the form of ADR Mechanism.

New methods of dispute resolution like ADR facilitate parties to affect the underlying issues at
issue during a less expensive manner and with increased efficacy. In addition, these processes
have the advantage of providing parties with the chance to scale back hostility, regain a way of
control, gain acceptance of the result, resolve conflict in a peaceful manner, and achieve a greater
sense of justice in each individual case. The resolution of disputes takes place usually privately
and is more viable, economic, and efficient. ADR is usually classified into a minimum of four
types: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type,
conciliation, is included also, except for present purposes it are often considered a sort of
mediation.

Before beginning with the mediation regime in family disputes, it is important to discuss the
specific relevance of mediation proceedings in family disputes. A 2016 Report by Vidhi Centre
for Legal Policy on the mediation regime in India revealed that 41,503 cases out of a complete of
46,000 cases (approx.) of court-referred mediation were family disputes (the report collects this
data from the Bombay supreme court and Supreme Court). Over a period of 5 years (2011-2015),
quite 25,000 family law cases were mentioned mediation. This was almost 80% of the total cases
referred to mediation in the said time frame. The references included cases under the Dowry
Prohibition Act, maintenance application cases under Section 125 of Code of Criminal
Procedure, 1973, PWDV Act, Guardians and Wards Act and other divorce matters.

More family disputes are mentioned mediation than the other dispute. Due to the private nature
of the dispute, i.e. the involvement of sentiments and emotions, mere legal, technical and
procedural rules don't suffice. The general understanding is that communication between the
stakeholders is always the first and most important step in familial disputes. Much responsibility
lies with the adjudicator here, then a mediator who can invest time in understanding the nuances
of the dispute to facilitate communication and collaboration between the parties is of utmost
importance. It is also important to understand that mediation doesn't require lawyers to be
present. Mediation is additionally a faster process than litigation in India, which is notorious for
carrying on for years at end. With this cost and time effectiveness, mediation becomes ideal for
family law disputes.
 DISCUSSION

Nothing is static, everything is dynamic. Due to evolution of your time everything changes viz.,
process, tradition, way of living etc. The concept of dispute was very old and still hip. Alternate
Dispute Resolution system isn't a replacement phenomenon for the people of this country; it's
been prevalent in India since time out of mind. Ancient system of dispute resolution made a big
contribution, in reaching resolution of disputes concerning family, social groups and also minor
disputes concerning trade and property. Village Level Institutions played the leading role, where
disputes were resolved by elders in their particular caste or kula and panchayat system, which
was an off-the-cuff way of mediation. In earlier days disputes hardly reached courts. Decisions
given by the elderly council were respected by all. But subsequently boon accompanied bane, the
very system lost its aura. The delay in justice dispensation, particularly in commercial and family
disputes, causes great hardship and loss to the parties. In order to scale back delays in resolution
of disputes, the Governments and therefore the Judiciary are encouraging settlements or
counseling techniques or conciliation which are a part of ADR. In this present day, Life may be a
circus within the fast-moving 21st century. Juggling job responsibilities, work and home
responsibilities, wage and age – it’s all a juggling act. Successful career aspirants don’t become
hooked in to dropping the ball, because they know they're going to recover. Stay balanced on the
tightrope , and don’t be afraid to travel a touch off-balance.

Prevalence of gender biased laws and oppressive social practices over centuries have denied
justice and basic human rights to Indian women. The need to determine the Family Courts was
first emphasized by the late Smt. Durgabi Deshmukh. After a tour of China in 1953, where she
had occasion to review the working of family courts, Smt. Deshmukh discussed the topic with
Justice Chagla and Justice Gajendragadkar then made a proposal to line up Family Courts in
India to Prime Minister Pt. Jawahar Lal Nehru. Even after reformative legislation was enacted,
implementation of reformed laws left much to be desired. Though the ladies of India demanded
establishment of Family Courts in 1975, the govt of India took ten years to pass the required
legislation. The Law Commission in its 59th report (1974) has also stressed that in handling
disputes concerning the family, the Court need to adopt an approach radically different from that
adopted in ordinary civil proceedings which it should made reasonable efforts at settlement
before the commencement of the trail. The Code of Civil Procedure was amended in 1976 to
supply for a special procedure to be adopted in suits or proceedings concerning matters
concerning the family. However, not much use has been made by the Courts in adopting this
conciliatory procedure and therefore the courts still affect family disputes within the same
manner as other civil matters and the same adversary approach prevails. The need was therefore,
felt, within the public interest, to determine family courts for quick settlement of disputes.

Additionally, the confidentiality element in every mediation proceeding makes it the perfect
dispute settlement forum for family matters. This need for confidentiality in mediation has been
stressed in multiple cases, including the case of Moti Ram (D) Tr. Lrs. v. Ashok Kumar & Anr 1.,
where while stressing on the need for confidentiality, the Courts also stated that the mediators
during submission of mediation report to the Court must not disclose transcripts of the
proceedings. They only needed to mention whether the mediation was successful or not and what
settlement/ compromise was reached to if any. In a country like India, where family matters are
considered “inside matters” to the extent that folks hesitate from filing cases afraid that it might
publicize their disputes, confidentiality promised by mediation proceedings might be a well-
needed respite.

Multiple laws in India, including sections of the Family Courts statute and the HMA i.e Hindu
Marriage Act, stress on the need for out of court settlement of disputes. The Courts derive the
required legislative backing for reference to mediation through these provisions. The relevant
provisions of laws are enumerated below:

1. Section 89 of Code of Civil Procedure (CPC), 1908

Under Section 89, when it is provided that the Court will formulate a ‘settlement’ and
refer it to one of the ADR mechanisms, it only means that what is referred to one of the
ADR modes is the dispute which is summarised in the terms of settlement. This Section
gives the Civil Courts unfettered discretion to refer cases to alternate modes of dispute
settlement wherein the judges’ mind “there exist elements of settlement between parties”
and in those cases, the Courts could make reference to (a) arbitration under the
Arbitration and Conciliation Act 1996, (b) Lok Adalat (c) other institution for judicial
settlement or (d) mediation to effect a compromise between the parties. Section 89 CPC
embodies the concept of court-referred mediation in India.
1
Moti Ram(D) Tr.Lrs.& Anr vs Ashok Kumar & Anr
2. Section 9 of Family Courts Act, 1984

This section makes it a ‘duty’ of all Family Courts to endeavour towards ‘settlement’ of disputes.
This section gives immense power and responsibility to the Family Courts to facilitate
settlement, above all. By using terminology such as “assist and persuade” parties into settlement
and by giving power even to adjourn proceedings where there is even a possibility of reaching a
settlement in any way, the statute encourages reference to mediation proceedings.

3. Section 23 of Hindu Marriage Act, 1955

Section 23 pertains to the grant of divorce decree in matrimonial cases. Per clause (2), before
grant of the divorce decree, the Court is required to “make every effort towards reconciliation”
between the spouses. Under clause (3) of the Section, for the purpose of the reconciliation, the
Court has full discretion to adjourn the case and refer it to a mediator – either appointed by the
parties themselves or appointed by the Court.

Based on these above-mentioned provisions in-laws, it is evident that there is nowhere in law a
mandatory requirement for reference to mediation, and it is a fully discretionary power to the
hon’ble Court, though highly encouraged under the statute. A court-referred mediation may lead
to a compulsory requirement to attend the mediation process; however, the statutes itself do not
discuss the binding value of the result of such mediations.
On principle, a mediation proceeding can never be binding unless agreed to by the parties to be.
For court-referred mediations, unless a settlement deed or a compromise agreement resulting
from a successful mediation is signed by all parties and submitted to the Courts, it will not
become binding on the parties. This was also held in the case of Afcons Infrastructure v. Cherian
Verkay Construction2. It is the Courts recording the settlement/ compromise agreement and
passing of decree on the same that makes the result of the mediation binding.

Recently, there was a conversation between two young women at a well-liked cafe, one woman
advising other friend woman, soon to be married and to not get pregnant, concentrate on career
by taking pills. When the contraceptive pill was first introduced, it was a triumph for working
women, a symbol of liberation. Women then were keen to urge on it; today we all know the side
effects include “blood clots, diabetes, depression or anxious emotional states” and lots of women
are keen to get off it.

The Hyderabad city has already earned a couple of sobriquets like being IT Development and
therefore the country’s suicide capital. And now, the town is heading towards earning the
notoriety of being the country’s divorce capital after Bangalore. The rising number of divorce
cases in Hyderabad has needed the government to make a decision on fixing additional domestic
relations court in CCC, Hyderabad.

Most applicants were found to be in their late 20s and early 30s, and the figures are only rising in
the burgeoning corporate world here. While the amount of applicants from the IT industry has
always been high. Experts said women from the lower and middle classes a gentle and stable
income, reducing their financial dependency on their husbands. Financial stability had helped
these women develop a robust element of individual choice, giving them a chance to formalise
their marital dissatisfaction through divorce, experts said. Sources from the family courts
informed that almost 80% of the divorce cases were filed under the Hindu Marriage Act 1955.

In case of marital disputes, professional counselling assumes an important role. The root cause
for differences between husband and wife become difficult to seek out , especially just in case of
divorce petitions where stereotypical allegations were made, he said. In this scenario,
professional counselling becomes vital to unearth the true cause of the dispute and to bring about

2
Afcons Infrastructure Ltd. V. Cherian Varkey Construction Co. p. Ltd. (2010) VIII SCC 24
an amicable solution. The false reasons presented for divorce exacerbated things , as both the
parties felt wronged, which made reconciliation that far more difficult. The need for professional
counselling and said that there have been many cases where people reported to her that the
counselling was improper. The need of the hour was pre-marital counselling, in order that people
entering marriage might be conscious of the commitments involved within the relationship.

The false reasons presented for divorce exacerbated things, as both the parties felt wronged,
which made reconciliation that far more difficult. The need for professional counselling and said
that there have been many cases where people reported to her that the counselling was improper.
The need of the hour was pre-marital counselling, in order that people entering marriage might
be conscious of the commitments involved within the relationship. There were three stages of
counselling people with marital disputes. The first was the initial state where things had not yet
deteriorated to the extent of approaching the law, the second was at the police headquarters
where many with marital disputes happen and therefore the third was during divorce
proceedings. So there should be a stress for the need for counselling during early stages itself.

Counselling may be a process through which one person helps another by a purposeful
conversation in an understanding atmosphere enabling him/her to cope more effectively with life
problems. It may be the one among the resolution for family disputes to settle amicably. As
counselling is a face -to - face communication, the counsellor must have the skills to understand
his/ her clients, develop a friendly relationship and give complete, correct and clear information,
using an easy language.

Family Counselling is one of the resolutive mode for family disputes, useful for:

1. Problems developing in one or more family members which affect all (i.e.: children's
problems, anger, depression in one partner etc.)

2. Family or relationship change such as divorce, or children leaving home

3. Cultural and ethnic conflict within relationships.

 Proliferation of Mahila Adalat

The constitution 42nd Amendment Act of 1976 inserted Article 39A in the constitution of India. It
was mandatory for the state to ensure and promote justice to the victims of crime. And to provide
free legal aid to everyone without any discrimination. The state must ensure that justice must not
be denied to any citizen due to any reason whatsoever. Disputes related to the marriage or any
other family issues could be easily resolved by the lok adalat. 

The National Commission for Women evolved the concept of Parivarik Mahila Lok
Adalat(PMLA). The first PMLA was established in the year 1995. The marital or any other
family disputes may be compromised and negotiated in the PMLA like other Lok Adalat. It helps
to enable the parties resolve their disputes without the facilitation of legal practitioners. There
are 

The discussion on Parivarik Mahila Lok Adalat (women court) is a mandate in line of study to
alternate dispute resolution. It is one of the most important part of ADR. The concept of
parivarik mahila lok adalat is evolved from the National Commission for Women. It is a
specialized court for addressing the issues related to women. Women court functions on the
model of lok adalat. Matters pending in courts in relation to marriage or family disputes are
sometimes disposed off by mahila adalat. The aim of establishing women court is to provide
expeditious and effective justice to the Women who becomes victim of the crime. Very
experienced and specialized women judges involved in resolving such matters appear before the
women’s court. It supplements the efforts of District Legal Service Authority by providing aid in
resolving the disputes by peaceful and harmonious means. The object of Parivarik Mahila Lok
Adalat is the resolution of dispute by providing the facility of speedy trial and cost free justice
delivery system to the women. Mahila adalat provides quick relief to the victim of crime. It is to
articulate awareness among the general public about the settlement of issues by means of
alternate dispute resolution. The most important objective is to encourage the process of
organization of lok adalat as well as public at large to settle their disputes without being trapped
in the formal legal set-up. It specifically empowered women to participate in the system of
justice delivery mechanism.
There are various benefits of redress of the dispute through lok adalat. It tries to resolve the
dispute in a very peaceful manner and provides a harmonious atmosphere. Time, efforts and
expenses are also comparatively less than other formal ways of resolution of disputes. It
encourages the party to make compromise instead of settling the matter with the end of
relationship. The copy of decision is provided to the parties without any cost. There may not be
any appeal against the decision of lok adalat, it’s  decisions are final.

If the question arises as wether the decision made by lok adalat is valid or not ? The answer will
be ‘yes’. The decisions of lok adalat have the legal validity. It has the same effect as a decree of
the court. The decision taken by it is binding upon the parties.  In spite the fact that it is based on
mutual consent of the parties.

Suggestions

1. To help ease the pressure on these family courts, the government has to provide them with
necessary infrastructure and manpower.

2. To create awareness about the prevailing laws associated with women and youngsters .

3. To provide referral services like, free legal aid short vocational training and medical treatment.
 CONCLUSION

In conclusion, it's important to spotlight the main issue with the mediation process in India
because it stands today: the shortage of statutory control over the mediation process. At present,
there is no statute that governs the role of the mediator and its limits or lays down standards for
accreditation of mediators or that illustrates the process of mediation and its elements and
conduct thereof (e.g. the difference between joint session and personal session and role of both
within the process). The statute is important to supply for punitive measures in cases of violation
of fundamentals of the mediation process and/or misconduct by the mediator, for instance , cases
where the confidentiality and non-disclosure requirement is violated either by the mediator or the
parties. The consistency and reliability of the mediation process is alwaysThe consistency and
reliability of the mediation process is always under question due to this lack of statutory backing
to the process. To ensure the efficient and effective use of the mediation process with all the
advantages it encapsulates, a statutorily regulated framework that addresses the abovementioned
concerns is important .