Report No. 257
f. Section 19F: Mediation.
Many disputes arising out of divorce proceedings (child custody, child support, etc.) could be solved through mediation. This would promote better outcomes for both parents and children, as well as reduce the strain on the overburdened court system. Before engaging directly with the court system, the Commission recommends that parties to a custody matter must ordinarily consider mediation before the proceedings actually begin, or when the court so orders. The court will usually refer the parents to the court-annexed mediation centre. However, in case there is no such centre, the court may appoint an individual mediator.
At present, Family Courts take assistance from marriage counsellors in settling disputes. Counsellors are different from mediators in terms of their approach. Counselling usually requires identifying behavioural issues of the individual parties and tends to involve professionals trained in areas of mental health, psychology and sociology, unlike mediation, which requires identifying conflict behaviour and tends to involve professionals trained in dispute resolution.165
Therefore, the Commission recommends that parties should be given the opportunity to participate in mediation with a trained mediator. Mediators should have appropriate background and training, including in family disputes. Further, High Courts, District Courts and Family Courts should maintain a list of court-annexed mediation centres and individual mediators. These will be identified and paid remuneration in accordance with a scheme designed by the concerned High Court in consultation with the respective state governments.
165 Maritalmediation Staff, What is the Difference between Marital Mediation and Marital Counseling?, February 22, 2013, available at
http://www.maritalmediation.com/faqs/what-is-the-difference-between-marital-mediation-and-marital-counseling-2/ (Last visited on April 22, 2015).
As the legislation repeatedly emphasises, it is the duty of the court to ensure that the final custody order is for the welfare of the child. For this purpose, the Commission recommends that the court should have the power to obtain an independent psychological evaluation of the child, in order to determine various related issues (e.g., the child's preference, influence of and relationships with the parents, etc.). Further, as in the case of mediation, professional assistance may be required, as neither the court nor mediators may be qualified to understand child psychology.
Time-bound resolution is also a key factor to achieve the ultimate objective of ensuring that the welfare of the child is met. The Supreme Court has recognized that Family Courts should ensure that a reasonable time limit is prescribed for the completion of the entire mediation process so as to not delay the resolution of family disputes any further. Baljinder Kaur v. Hardeep Singh, AIR 1998 SC 764.
The Commission recommends that any mediation under this section must be time-bound, and must conclude within sixty days of being so ordered. In the absence of such a requirement, there is a risk that mediation may continue indefinitely and adversely affect the child in question. However, the court can extend this period, where necessary.