Thirty-three-year-old Priya [name changed] was miserable. Her divorce case against her adulterous husband had been dragging on for over three years, making her constantly relive the painful moments that had driven her to this state. He had several extra-marital affairs and on one occasion even asked her to look after an ill girlfriend. Even though she had walked out on her husband and moved into her parent's home with her young sons, her husband was unwilling to grant her a divorce. In fact, he even proclaimed his love for her in the family court. Things did not seem to head anywhere for her.
But then came a move that for Priya, and many like her, ushered in great relief. Following the success of the pioneering Tamil Nadu Mediation and Conciliation Centre (TNMCC), started in September 2005, the Madras High Court decided to set up a Family Court Mediation Centre (FCMC) in September last year. Priya's case was one of the first one's to be referred to the centre. And, what could not happen in three years was accomplished in four months. A divorce on mutual consent was agreed upon and a decree was granted by court.
Says Advocate A.J. Jawad, Coordinator, FCMC, "The husband agreed to the divorce and also to provide Rs 15,000 per month for the maintenance of his children, who would stay with the mother. She [Priya] would not get alimony as she was employed. Being well-to- do, he would also deposit lump sums in the names of his seven- and nine-year-old sons."
While matrimonial disputes are painful for both parties, they are agonizing for children. Says Sriram Panchu, a senior advocate, "Courtrooms are intimidating, there is no confidentiality. There is an uncertainty and hostile cross-examinations. Sometimes, judges are also insensitive. But, in mediation, the parties have a chance to communicate and express their problem. Litigation between the parents means misery for the child." While courts call on children to express their views, in mediation, this is not done. Mediators get parents to agree on matters like custody, visitation rights, and so on.
Called the pioneer of mediation in India by Madras High Court Chief Justice A.P. Shah, Sriram Panchu is Founder, Indian Centre for Mediation, Chennai, and Organising Secretary, TNMCC. Explaining the concept of mediation, he says, "The legal process increases conflict between parties who come to have their differences resolved. Conflict is treated with increased doses of conflict to hammer out a solution. In mediation, the accent is on moving parties away from conflicting positions and getting them to focus on what leads to a mutually acceptable solution. While one focuses on a "win over you" syndrome, the other is a "joint effort for mutual gain".
Other advantages are that mediation saves time and money, while the solutions can be creative and flexible. If parties want a court decree, the mediation agreement is filed in court and enforced. As both parties have reached a consensus, future disagreements do not arise. Mediation can also be used for disputes already in court. Confidentiality is assured and cannot be broken by the parties or the mediators.
Elaborating on the benefits for women, Geeta Ramaseshan, Coordinator, High Court Mediation Centre (HCMC), says mediators immediately identify cases where there is an unequal balance of power. Sometimes women are unable even to speak and so are taken for private sessions with mediators so that they can talk freely about their problems. However, these sessions - termed 'caucuses' - can be conducted for men, too. Sometimes, even parents can be a part of the process.
Panchu says that while FCMC deals with cases referred at the trial stage, HCMC handles cases on appeal. The former was set up after it was discovered that people who come at the appeal stage are already bitter and have hardened their stance. Mediation by trained lawyers at the family court level became necessary because mandatory counselling there proved a failure. This was due to counsellors - social workers and others - taking a casual approach to the matter.
When asked about the approaches to mediation, Ramaseshan said, "There are two kinds of issues: questions of law; and actual relationships. Mediation is concerned with the latter. When a man and a woman are heading for divorce, communication between them would, most often, have broken down. So, the first step is to get them to start communicating. The next is to get them to move from 'talking at each other' to 'talking to each other'. If both parties have agreed on divorce, issues of alimony, child custody and division of property have to be settled. What is needed is for them to sit across the table and talk it out. Courts have no time for this." Where children are concerned, different options are generated by the parties and a satisfactory solution can be arrived at. In alimony, there are set norms and mediators spell them out. They ensure that expectations are realistic and also that the weaker party is not bullied into accepting less than what is due. If one party wants divorce and the other does not, mediators try for
However, in instances where there has been a history of abuse or violence, there is no point in making such an attempt. Ramaseshan clarifies that cases that involve technical or scientific disputes, like paternity, are never referred for mediation by judges.
The procedure for mediation goes like this. Parties retain the right to refuse mediation and can choose to go back to the courts at any point during the process. They can pick mediators of their choice, from a panel of trained lawyers in the High Court. From the courts' side, an administrative officer selects two mediators - one male and one female - for each case. They are selected based on factors such as the caseload of the lawyers and their skill sets. For instance, if the parties are north Indians, Hindi-speaking lawyers are picked. Mediation is done pro bono or free.
According to Jawad, till now [March 30, 2007] 245 cases have been referred to the FCMC, of which 125 have been disposed of. And this is bound to rise, with the team of dedicated lawyers working over time to settle them. "In 18 years of practice, I have not had the satisfaction that I have had settling cases through mediation," he says. With the pain in the process being far less, the number of people opting for mediation over litigation is surely going to spiral.