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WOMEN AND THE LAW

What is mediation?

The mediation facility, initiated recently in the Family Courts, is an alternative to the formal process of dispute resolution

About a month ago, a mediation facility was set up for the Family Courts in Chennai. The mediation centre is located within the Family Courts complex. This is part of the efforts formally initiated a year ago to bring mediation as an alternative to the formal process of dispute resolution, which is done by the courts.

What is mediation? Mediation is a voluntary process by which parties to a case or a dispute sit at a table and discuss the causes and issues leading to the case. Through this process of discussion, the parties are encouraged to arrive at a settlement of these issues. In the course of the discussions, each party learns of the other's views and experiences of the problems leading to the case.

This process involves a series of meetings between the parties, and the endeavour is to reach a resolution to the problem, which is acceptable to both parties. Where there are no terms of settlement reached which are acceptable to both parties, the case is sent back to the court for the formal adjudication process. Mediation is informal and depends entirely on the co-operation and willingness of the parties to the dispute to settle it.

Role of mediator

Apart from the parties to the dispute, one or more independent persons participate in the discussion. They are called mediators, whose role is to facilitate the discussion between the parties. The presence of the mediator is essential to this process, since the parties may, on account of their vulnerabilities, outrage or hostility, be unable or unwilling to sit together with the other party. The presence of the mediator also helps bring in a level of parity between the parties in discussion, since one of the parties could be economically or emotionally stronger than the other, and dominate the process of discussion or the settlement.

The mediator is impartial, and cannot impose any settlement on the parties. Neither can the mediator (unlike a Judge) take a position in the course of the process, on which party is wrong or right, as the cause for the dispute occurring in the first place. The discussions taking place in the mediation are to be kept confidential, and cannot be revealed by the mediator, or used by the other party in court if the mediation fails.

Many aspects of this process are familiar to us. We have personally experienced or heard of family members pitching in to help resolve a dispute amongst relations. We do know of the panchayat system of resolving disputes, using similar processes. Mediation recognises the merit in these methods of dispute resolution, but brings in elements of parity, willingness and the participation of the parties themselves in the process and its outcome.

The power to reach a solution and the terms on which it is reached is with the parties themselves, and not with a third party, as in the court or arbitration or even the panchayat processes. This has to be, since the stakeholders in the settlement are these parties and no one else.

In 1999, an important amendment was introduced in the procedural law for civil proceedings. This enables a Judge to refer a case, which in her opinion can be resolved by the parties, to the process of mediation. The facility for mediation was established as an adjunct to the court process, by setting up the Tamil Nadu Centre for Mediation and Conciliation in April 2005, followed by the facility in the Family Courts. Since then, courts have been referring cases for resolution through mediation.

There are, however, certain limitations to this process. In the context of matrimonial proceedings, mediation cannot be resorted to immediately where there are urgent orders sought for the custody of children or for maintenance. Persons who are not genuinely interested in a settlement, but participate merely to prolong the case in court, can abuse this process. This method may also be inappropriate where there are allegations of abuse, and criminal proceedings are pending against one of the parties. This process also requires the sustained effort and time of the parties if the process is to yield results. Again, the settlement reached need not necessarily meet or fulfil standards to which a party is entitled under a particular law.

However, for women who have been through a difficult marriage, the process of seeking and obtaining their legal remedies is agonisingly long. This process empowers them to take a decision in relation to the problem on terms, which they are best equipped to assess. Further, since the process is voluntary, a woman need not agree to any settlement which she perceives to be unfair to her. This is a significant alternative for women, which offers the potential of greater control over events affecting their lives.

(chitra.narayan@gmail.com)

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