#conciliiation

Family plays a crucial role in any community or society. A family is an association as well as an institution. Not only economic needs but also, more importantly, the emotional needs of the members are taken care of in the family. Today, divorces and disputes over property inheritance are proliferating like never before. The reasons may vary from economic conditions to professional problems and psychological imbalances. The author of the article made a socio-legal study of the causes of the conflict in the family. It is important for the society to devise means of protecting the family and also preventing and resolving the disputes that could damage and destroy the delicate fabric of the family. The author suggests conciliation and mediation for the resolution of these disputes as these mechanisms offer multifaceted resolution advantages like objectivity, due focus on the issues, neutrality and independence. The author also gives an overview of various statutory frameworks in India supporting ADR mechanisms in family disputes.There is a growing feeling among the legal experts, sociologists and psychiatrists that the use of The IUP Journal of Alternative Dispute Resolution (ADR) methods such as Mediation, Arbitration etc., must be encouraged in the resolution of family disputes. This school advocates the replacement of adversarial court system with a less formal interactive procedure by providing well organized supporting services such as family counselling services, reconciliation services, investigative services, legal aid services and enforcement services. Justice R C Lahoti, the Chief Justice of India, strongly endorsed the view that there are inherent weaknesses in the existing justice delivery systems which call for effective measures for strengthening the institutional processes. He also stressed the importance of the ADR mechanism, because the aim of ADR is to bring about a durable resolution of disputes and not to impose and enforce decisions. According to him, ADR mechanism especially mediation and reconciliation should play a major role in settling disputes, as it would save energy, time and money of the litigants, particularly in family matters.Need for Mediation and Conciliation in family disputes:Litigation does not always lead to a satisfactory result. It is expensive in terms of time and money[1]. Its adversarial nature does not change the mindset of the parties and ends up in bitterness. Alternative dispute resolution systems are not only cost and time effective; they preserve the relationship between the parties by encouraging communication and collaboration.Maintenance of peace and harmony is the paramount consideration in resolving family disputes. Conciliation and mediation are old institutions and indeed they are deeply rooted in the social tradition of many societies, particularly in Asian culture and values. In India, family disputes were resolved by the elders of the family who acted as conciliators or mediators. Even today, elders of the family and in villages, the elder persons of the village have such a role. Panchayats also perform a similar function and are preferred by villagers over courts due to their easy accessibility and prompt dispute resolution[2]. The philosophy behind ADR is amicable dispute resolution and mediation is one such process that provides a space to the parties to sit down and focus on what they really want, rather than think what they need to seek or what the law will let them fight for[3]. Mediation is defined in Black’s Law Dictionary as “a private, informal dispute resolution process in which a neutral third party, the mediator, helps disputing parties to reach an agreement[4].” Family dispute mediation is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by promoting the participants’ voluntary agreement. The family mediator assists communication encourages understanding and focuses the participants on their individual and common interests. The family mediator works with the participants to explore options, make decisions, and reach their own agreements[5]. Thus the family mediator assists the participants to gain a better understanding of their own needs and interests and of the needs and interests of others.References to mediation/conciliation in family dispute resolution can be found in the Family Courts Act, 1984, Civil Procedure Code, Hindu Marriage Act and the Legal Services Authorities Act, 1987 that recognizes and gives a special status to Lok Adalats that have been very effective in mediating family disputes. The Family Courts Act was enacted with a view to promoting conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith[6]. Conciliation, speedy settlement, non-adversarial approach, multi-disciplinary strategy to deal with family disputes, informal and simple rules of procedures and gender justice are supposed to be the cornerstones of the philosophy of the Family Courts[7]. The whole structure of family courts rests on the twin pillars of counselling and conciliation. The counsellors are required to not only provide counselling but to bring about reconciliation and mutual settlement whenever feasible. Section 9 (1) of the Family Courts Act states that “In every suit or proceeding, endeavour shall be made by Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.” While Section 9(2) directs the family court to adjourn the proceedings if it appears that there is a reasonable possibility of a settlement between the parties for such period as it thinks fit is necessary for taking the required measures for bringing about the settlement. These provisions, however, do not make mediation/conciliation compulsory.Section 23 (2) of the Hindu Marriage Act, 1955 which contains similar provisions provides that before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties provided that nothing contained in this subsection shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii)[8], clause (iii)[9], clause (iv)[10], clause (v)[11], clause (vi)[12] or clause (vii)[13] of sub-section (1) of section 13[14]. It also states that, for the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, affected and the court shall in disposing of the proceeding have due regard to the report. Here again, there is no compulsion to go for mediation before taking recourse to litigation[15].Similarly Section 89 of the Civil Procedure Code (Amendment) Act, 1999[16], directs the courts to identify cases where an amicable settlement is possible, formulate the terms of such a settlement and invite the observations thereon of the parties to the......... read more