Report No. 257

A. Current Legal Framework for Mediation in India

4.2.1 Section 89 of the Code of Civil Procedure, 1908 provides that a court can formulate terms of a settlement and give them to the parties for their observation and, after receiving the observation of the parties, reformulate the terms and refer the same for arbitration, conciliation, judicial settlement (including settlement through Lok Adalat), or mediation.

Rule 3 of Order XXXIIA of the Code of Civil Procedure, 1908 states that, in suits or proceedings relating to matters concerning the family, where it is possible to do so consistent with the nature and circumstances of the case, the court has a duty to assist the parties in arriving at a settlement. Also, if at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement.

4.2.2 Additionally, Section 9 of the Family Courts Act, 1984, lays down the duty of the Family Courts to assist and persuade the parties, at first instance, in arriving at a settlement in respect of subject matter. The Family Courts have also been conferred with the power to adjourn the proceedings for any reasonable period to enable attempts to be made to effect settlement if there is a reasonable possibility.

4.2.3 There is a growing need of mediation for matrimonial disputes in India. In K. Srinivas Rao v. D.A. Deepa, AIR 2013 SC 2176 the Supreme Court stated that, Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted. Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres.

Our experience shows that about 10 to 15% of matrimonial disputes get settled in this Court through various mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation.

4.2.4 Furthermore, the Mediation Training Manual,87 circulated by the Mediation and Conciliation Project Committee of the Supreme Court, states that all cases arising from strained or soured relationships-including disputes relating to matrimonial causes, maintenance, and custody of children-are normally suitable for Alternative Dispute Resolution processes.88

87 The Manual is available at
http://supremecourtofindia.nic.in/MEDIATION%20TRAINING%20MANUAL%20OF%20INDIA.pdf

88 Mediation Training Manual, at p. 67, available at
http://supremecourtofindia.nic.in/MEDIATION%20TRAINING%20MANUAL%20OF%20INDIA.pdf