*Saurabh Gupta
In family disputes, there is a high probability of parties resorting to dispute resolution informally. This may assume the shape of discussion amongst family members, sometimes with the help of a third party. There are a number of ADR mechanisms that use third parties for reaching a mutually agreeable resolution, mediation being one of these. Mediation, being a mediated negotiation, is not an adversarial proceeding,[1] and a mediator facilitates collaboration.
India has had a long history of informal dispute resolution akin to various ADR mechanisms that we see operating today. Of late, their importance seems to have plummeted, while court litigation has become the norm. However, there is a difference between dispute adjudication and dispute resolution.[2] I argue in favour of using mediation in family disputes in India, making a case for dispute resolution over adjudication. Furthermore, I look at certain indigenised models of mediation to specifically deal with family disputes in India.
Mediation as an Alternative to Court Litigation
There is a multitude of benefits associated with using mediation over court litigation in family matters.
First, mediation ensures greater respect for parties’ privacy.[3] Family matters may involve sensitive information, which may lead to reputational loss if publicly shared. The fear of leakage may even cause the parties to be hesitant from disclosing complete information during litigation, leading to suboptimal decisions. However, in mediation, the relative informality and better confidentiality of the process can ensure that the parties speak more freely.
As rightly put by Schmitz,[4] mediation helps in ‘not airing the family’s dirty laundry in public’. This may especially be a consideration in matters involving family elders (often the case in succession disputes), as they usually accord family reputation high priority. Furthermore, privacy can protect interests of those parties that live or operate business as a family. This is especially true for Hindu Undivided Families (HUFs) who often indulge in joint family business. So, a dispute resolved through mediation can protect the interests of multiple stakeholders within the family.
Second, mediation is an effective form of dispute resolution in cases where the proverbial emotional quotient runs high (family matters).[5] For instance, in a property dispute relating to division of an estate, there may be an emotional rivalry between two siblings, often caused by mere miscommunication/misunderstanding. Mediation, being more informal and flexible, deals with both the legal and emotional issues, thus making it better suited to dealing with family disputes. Litigation is limited to the legal questions, and treats the parties as adversaries.
Third, mediation can help preserve family relationships,[6] in addition to dispute resolution. Mediation involves open communication between the parties, with an aim to understand the concerns that each side may have. The approach is to develop a willingness to work together in order to reach a mutually agreeable and beneficial agreement. This again is especially important for an HUF operating a shared business.
Fourth, mediation aims at mutually beneficial outcomes.[7] Whereas, court litigation will necessarily lead to one party winning at the cost of the other. In family disputes, parties may have non-legal interests that cannot be identified in courts. For instance, in a dispute between two siblings over a piece of property, maximum satisfaction would be guaranteed if they mutually divide the property as per their needs (with due consideration to the non-legal interests). Basing decisions solely on economic value (practice in courts) leads to suboptimal resolutions.
Fifth, use of mediation can divert some of the burden of the courts. In India, where the courts already face a huge backlog of cases,[8] this becomes all the more imperative. Admittedly, this benefit is not exclusive to the use of mediation, and accrues from all ADR mechanisms. However, since mediation is a collaborative process, mediated settlements are more likely to not be litigated upon. This ensures that the court burden remains low, not only during mediation, but also post-mediation.
All of these benefits highlight why mediation should be preferred to litigation, especially in family disputes. However, this analysis is incomplete without presenting the other side of the coin. Power imbalance between the parties can wreck mediation. Such a power imbalance can favour anyone, depending on the family dynamic. In India, where familial hierarchy is quite prominent, power imbalance is common. In such cases, the mediator’s role becomes all the more important, and difficult. There are two alternatives with the mediator. One, the mediator can ensure that the power imbalance is not reflected in the settlement by ensuring the process involves utmost transparency, free flow of information, mutual respect and collaborative agenda. The second alternative is to advise parties against pursuing mediation. However, the second alternative should be employed if the imbalance is obvious and likely to hinder an impartial settlement. The choice has to be made by the mediator on a case-to-case basis. Better training can better equip mediators to deal with such situations.
The Question of ‘Mediability’
In Booz Allen,[9] the Supreme Court propounded a test for arbitrability based on whether the right to be enforced was ‘in rem’ or ‘in personam’. The former could not be arbitrated for, while the latter could be. In Vimal Kishore,[10] the Court has further extended the bar on arbitrability to certain other matters. The reasoning has been questioned in some other judgements, and alternative tests have been suggested. Booz Allen and others become important since it is argued by some that the test on arbitrability extends to other modes of private adjudication as well, and thus covers mediation.
However, I would like to offer a two-pronged response to the above contention. A distinction needs to be drawn between dispute adjudication and dispute resolution here. The latter is a wider term, and includes within its ambit, adjudication and certain collaborative modes like mediation too. Mediation is not a mechanism where a third party ‘adjudicates’ the dispute. Thus, a bar on arbitration, which is a private adjudication mechanism, must not extend to a dispute resolution mechanism which is fundamentally different. This becomes all the more important since mediation can often be informal, the settlement not being sought to be enforced through courts. Notably, the concern in Booz Allen and others seems to be that the third party’s rights in case disputes are adjudicated privately. This seems to not be a concern in mediation especially since unlike arbitration, India does not even have a law as of now that gives automatic legal affect to mediated settlements. Thus, any argument for exclusion of family matters that may not be arbitrable due to the Supreme Court’s rather recent jurisprudence on the issue may not, and should not, be understood as applicable to mediation too.
Tailoring Mediation to Indian Needs
While India does have a grass-roots foundation in ADR in the form of lok adalats and panchayats, litigation still remains the primary mode of dispute resolution in India. Certain institutional reforms based on pre-existing indigenous ADR models may ensure wider use of mediation in family matters in India. Given that a bulk of family disputes revolve around issues pertaining to either property or matrimonial issues, I have culled out two suggestions that may be of help in this regard:
Use of Mediation in Family Arrangements
Hindu Undivided Family (HUF)[11] refers to a family system wherein property belonging to the joint family is shared property of each member. Notionally, each member has an allocated part of the property (devolved by birth in case of Mitakshara Law) which may be severed by way of partition. Often times, members may quarrel over their shares. A family arrangement or family settlement aims to avoid prolonged litigation that may arise out of such disputes.
According to the Halsbury’s Laws of England,
‘A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour’.
The general trend in courts is not to hold contract essentials to the same standards in case of such arrangements as for any other contract.[12] A family arrangement is not shaken on technical or trivial grounds. Along with the clear benefit of the economy of time and money, this makes family arrangements quite popular amongst HUFs in India.
Such arrangements are also more acceptable to the parties as they have an unbiased and neutral party assisting the arrangement. Thus, mediation can lead to a fairer dispute resolution and ensure better compliance by the parties. This makes a case for use of mediation as a supporting mechanism to family arrangements. A lot of litigation can be done away with if mediation becomes more prevalent in matters pertaining to property in the HUF.
Mediation and Women’s Courts
India has recently seen a surge in popularity of “women’s courts”.[13] These are government-run or voluntary dispute resolution bodies, that deal with women’s legal disputes. Calling them ‘courts’ could indeed be a misnomer, since these bodies often envisage use of mediation and conciliation, with an aim to avoid litigation. However, accessibility and implementation remain a drawback. The idea is to provide a comfortable environment to women during dispute resolution, who face an inherent disadvantage due to the power skewed in the favour of men within a family unit. Some of these courts in fact have an all-woman structure where all their mediators are women, often from the same locality and socio-cultural background. This concept can be of great relevance in the context of family disputes, if adequate efforts and resources are put to spread awareness and improve accessibility of these courts. Family disputes are on the rise. Court systems are clogged, and dispute resolution is causing a lot of pain to the average Indian. A spurt in the use of mediation can only yield positive results, especially when coupled with indigenous systems and ideas already operating in the Indian legal regime. Recent times have seen mediation being taken more seriously, especially instances like mandatory mediation in Commercial Courts Act 2015, mediation through Consumer Protection Act 2019, among others. However, informal methods as purported in this piece, may be another strand of expansion that can make mediation a common dispute resolution mechanis
[1] D. Nuffer, Adversarial or Conciliatory? What Litigators Should Know About Mediation, 51(1) Dispute Resolution Journal 24 (1996).
[2] A.W. Meyer, To Adjudicate or Mediate: That is the Question, 27(2) Valparaiso Univ. L. Rev. 357 (1993).
[3] M. Radford, Advantages and Disadvantages of Mediation in Probate, Trust, and Guardianship Matters, 1(2) Pepperdine Dispute Resolution Law Journal 241 (2001).
[4] S. Schmitz, Mediation and the Elderly: What Mediators Need to Know, 16(1) Mediation Quarterly 71 (1998).
[5] J. Epstein, Grief, Anger and Fear in Mediation, Epstein & Epstein Alternative Dispute Resolution 37 (2010).
[6] Supra note 3, at 244.
[7] Dale Eilerman, Win/Win Solutions – The Role of Collaboration in Resolving Problems, Mediate India (2007) available at https://www.mediate.com/articles/eilermanD8.cfm (last visited 21 June 2020).
[8] PRS Legislative Research, Vital Stats: Pendency of Cases in the Judiciary (2018) available at https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/Vital%20Stats%20-%20Pendency%20and%20Vacancies%20-Roshni%20-%20250718For%20Upload.pdf (last visited 19 June 2020).
[9] Booz Allen Hamilton v. SBI Home Finance, (2011) 5 SCC 532.
[10] Vimal Kishor Shah v. Jayesh Dinesh Shah, (2016) 8 SCC 788.
[11] For a better understanding of what an HUF is and how it works, see https://www.mondaq.com/india/family-law/585206/article-on-hindu-undivided-family-huf (last visited 21 June 2020).
[12] Lala Khunni Lal v. Kunwar Gobind Krishna Narain, (1911) 13 BOMLR 427; Sahu Madho Das and Ors v.
Pandit Mukand Ram and Anr., AIR 1955 SC 481; See also William v. William, (1866) LR 2Ch 29.
[13] S. Vatuk, The “Women’s Court” in India: An Alternative Dispute Resolution Body for Women in Distress, 45(1) The Journal of Legal Pluralism and Unofficial Law 76 (2013).