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Mediating Matrimonial Disputes in India

Trends from the Bangalore Mediation Centre

Kritika Vohra (kritika.vohra@vidhilegalpolicy.in) is an associate fellow at the Vidhi Centre for Legal Policy, New Delhi.

Dispute resolution through negotiation has long been a part of the Indian legal tradition, though the Civil Procedure Code, 1908, was only amended in 1999 to include different mechanisms for out-of-court dispute resolution. This amendment brought mediation into focus as a key form of alternate dispute resolution. Data from Bangalore Mediation Centre points to issues in the mediation framework that must be addressed before mediation can be seen as an effective mechanism to resolve matrimonial disputes. These include inadequate training of mediators, judges giving mediation referrals without proper consideration, gendered power imbalances, and prioritising the institution of marriage over individuals’ interests. This paper argues for an evidence-based approach to studying matrimonial cases and mediation.

The author would like to thank Sumathi Chandrashekaran and Namrata Mukherjee for their editorial assistance.

Alternative dispute resolution (ADR) mechanisms have long been touted as an efficient substitute to traditional adjudication of legal disputes by courts (Law Commission of India 1978, 1979). However, it was only in 1999 that the Civil Procedure Code (CPC), 1908, was amended to include Section 89, which codified different mechanisms for such out-of-court resolutions.Mediation, one of the four mechanisms delineated in the provision—is a voluntary non-adjudicative form of dispute resolution where a neutral third party assists parties in reaching an amicable solution through negotiation and facilitation (Mediation and Conciliation Project Committee, nd). Although dispute resolution through negotiation has long been a part of Indian tradition, this amendment, which came into effect only in 2002, brought mediation into focus as a key form of alternate dispute resolution. It also provided legislative impetus to court-connected mediation, which is a model that enables sitting judges to refer cases before them for mediation. However, it was not until the Supreme Court’s decision in Salem Advocate Bar Association v Union of India (2005) that a framework for court-connected mediation centres was established and model rules formulated (Konoorayar et al 2014).1

1 Court-connected Mediation and Matrimonial Disputes

Interestingly, even though mediation was listed as a dispute resolution mechanism for all civil cases, subsequent judicial and legislative interventions have altered the narrative significantly. From being an alternative for suitable civil cases across case types, the focus has shifted to mediation being particularly well-suited for matrimonial cases.2 This shift came incrementally and established itself in the then existing policy on matrimonial disputes, as codified in the Family Courts Act, 1984. This act provided for the establishment of family courts with a view to “promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith” (Preamble, Family Courts Act, 1984). These courts function as district courts and are the courts of first instance for matrimonial cases (Family Courts Act, 1984). Section 9 of the act, in particular, states that it is a duty of family courts to make efforts to encourage a settlement between disputing parties. In this manner, in its efforts to enhance welfare and provide speedy redressal through specialised courts, the act also validated the treatment of matrimonial cases as a distinct class when determining the appropriate method of dispute resolution.

In this context, subsequent developments strengthened the policy resolve to redress matrimonial disputes using non-adjudicatory methods like mediation. For instance, the Draft Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2003 (“the Draft Rules”), delineate factors for parties to take into account when opting for an ADR mechanism. The draft rules set out “matrimonial, maintenance and child custody matters, among others” as disputes where conciliation or mediation is appropriate, since the preservation of a relationship between parties is desirable in such cases (the Draft Rules 2003: Rule 4 (iii)). Moreover, in Afcons Infrastructure v Cherian Varkey Construction Co (P) Ltd and Ors (“Afcons”) (2010), the Supreme Court listed disputes relating to “matrimonial causes, maintenance and custody of children” among those “arising from strained or soured relationships” and deemed them “normally suitable for ADR processes.” In K Srinivas Rao v D A Deepa (2013: 226; “Srinivas Rao”) as well, the Court noted that matrimonial disputes are often caused by trivial misunderstandings that can be sorted out with the help of trained mediators. Following such observations, the Court directed that family courts should make an effort to settle matrimonial disputes through mediation. In the same breath, the Court also directed that criminal courts should refer cases under Section 498A of the Indian Penal Code (IPC), 1860—which criminalises cruelty towards a woman by her spouse or his relatives—for mediation, if elements of a settlement exist3 and parties are willing. Although this list is only illustrative, it indicates how dispute resolution in matrimonial cases has long been viewed differently from the resolution of other cases (Figure 1).

2 Why We Need to Worry

The focus on settlements and preserving continuing relationships through mediation is not unique to India. Jurisdictions across the globe have dealt with cases relating to matrimonial life through specialised courts and have made mediation efforts in certain types of cases mandatory.4 However, certain aspects of how Indian jurisprudence on this issue has evolved are deeply problematic.

First, the jurisprudence in India lacks clarity on whether parties’ consent is required for court-connected mediation. While mediation is understood to be a voluntary and self-determined process by the Mediation and Conciliation Project Committee (a committee established by the Supreme Court to oversee the effective implementation of mediation and conciliation in the country), Section 89 and related rules do not view parties’ consent as a prerequisite to court referral.5 In Afcons (2010), the Court also noted that consent was not crucial to mediation and listed matrimonial disputes6 among the cases where referral to “an ADR method is a must” (Afcons 2010). Even though the Court, in a subsequent decision, listed the willingness of parties as a prerequisite (Srinivas Rao 2013), the back and forth not only reflects a misunderstanding of the very process of mediation, but it also muddles the scope of court-connected mediation in India.

Second, judicial pronouncements have rendered the term “matrimonial cases” amorphous. For instance, the Court has, for years, permitted the quashing of first information reports (FIRs) in certain non-compoundable offences,7 for example, in cases under Section 498A, on the pretext that some offences (such as those in matrimonial cases) “overwhelmingly and predominantly bear civil flavour” (Gian Singh v State of Punjab and Anr, 2012: 58, 303). By deeming criminal offences in matrimonial disputes to be less serious than others because the harm in such cases is to the victim rather than society (Gian Singh 2012), the Court has made a problematic classification.8 The term “matrimonial cases” has, therefore, become a catch-all phrase used to recreate the public/private divide that the legislature sought to debunk by criminalising certain acts.

Third, the Supreme Court’s decision in Srinivas Rao (2013), where it held that criminal courts should refer Section 498A (IPC) cases for mediation, raises several concerns. For one, the Court overrode the legislative intent expressed in the drafting and transgressed its judicial mandate. Even though the statute limits the use of ADR mechanisms to civil cases, the Court gave judicial legitimacy to mediation in criminal cases under Section 498A of the IPC (see Code of Criminal Procedure, 1973: Section 320). Additionally, by suggesting that a criminal case be mediated, the Court also contradicted its earlier opinion in Afcons, which listed criminal offences as unsuitable for ADR (Afcons 2010: 24, 27). Moreover, by muddling the jurisprudence further, the Court reiterated a false and gendered hierarchy between offences, deeming some offences—like those in matrimonial cases—to be less serious than others.

Fourth, the jurisprudence has been oblivious to matrimonial relations being deeply gendered and oppressive (Agnes et al 2016). By not acknowledging this, the existing mediation framework already compromises on the quality of justice being dispensed, especially for women. Although jurisdictions in other parts of the world have accounted for these complexities by instituting safeguards such as screening procedures and specialised training requirements (Office of Dispute Resolution 2014; Zylstra 2001: 253–300), similar efforts have not been made in India. The lack of institutional safeguards to protect parties’ interests in such complex situations is another sign that the systemic push towards mediating matrimonial disputes in India has been dangerously premature.

3 Case for an Evidence-based Approach

Tracing the jurisprudential trajectory and recognising problem areas is far from enough. Policies and reforms in India continue to be based on anecdotes, intuition, and common sense, and and the efforts to resolve matrimonial cases through mediation are no exception (Sangai et al 2016). As the trajectory thus far reveals, the push for mediation in such cases has persisted for decades without any periodic inspection of outcomes. The conspicuous absence of data, and of documentation of the experiences of court-connected mediation centres in dealing with such cases, is particularly troubling. Since these centres have borne witness to the implementation of the mediation policy, an evidence-based analysis of these experiences can bring nuance to the largely monochromatic discourse on mediation, especially in matrimonial cases.

To this end, this paper relies on data from the Bangalore Mediation Centre (“BMC”) to critically analyse court-connected mediation in such cases. Even though previous studies have examined the behaviour of “family law”9 cases in courts (Agnes 2004; EKTA Resource Centre for Women 2008), this paper, for the first time, uses evidence-based research to explore mediatory processes in matrimonial cases. As this paper reveals, much has escaped the attention of policymakers for decades. For instance, numbers relating to cases not settled or non-starters (defined below) invite re-examining the presumption that matrimonial cases are suitable for mediation. Further, qualitative data about parties’ vulnerabilities and the mediation process highlight the need for a cautious approach when persuading parties to mediate their disputes. By voicing these concerns, this paper attempts to imbue the narrative on mediation in matrimonial cases with nuance.

This is an ambitious goal, given the deplorable state of jurimetrics in India. Scholars frequently bemoan the lack of official statistics, which has hindered data-driven legal scholarship in India (Iyengar 2016; Khaitan and Seetharam 2016). The problem of bad data management practices is also endemic across mediation centres (Kumar et al 2016). For instance, although data from three court-connected mediation centres in India were obtained for a larger study on court-connected mediations, only the BMC had disaggregated data according to different types of cases.10 Some of the data requested were not documented even by the BMC, and data recording practices had not been updated for a long time. Even with all these caveats, data from the BMC is the only publicly available data on mediation in matrimonial disputes; and it tells a story that must be heard.

4 Methodology

This paper uses a combination of quantitative and qualitative data. For the quantitative part, it relies on “case-type reports” provided by the BMC for the period between 2011 and 2016—the research period. These reports document the number of cases before the centre, cases settled, non-starters, and settlement rate, among others, for different types of cases. As per data obtained from the BMC, and for the purposes of this paper, “matrimonial cases” consist of the following case types: (i) divorce, (ii) custody, (iii) restitution of conjugal rights, (iv) judicial separation, (v) section 125 of the Code of Criminal Procedure, 1973 (maintenance), (vi) custody/guardianship, and (vii) Protection of Women from Domestic Violence Act, 2005 (DVA cases).

Since the quantitative data reveals only a part of the larger and more complex picture, the paper also uses qualitative data. This data was gathered through semi-structured telephonic interviews and meetings with experienced mediators and administrators at the BMC (interviewees) to supplement the quantitative findings. Mediators at the BMC are practising advocates or retired judges who receive certain minimum training that is provided by the centre. Since mediation proceedings are protected by confidentiality, the parties to mediation could not be interviewed; therefore, the importance of mediators’ accounts of what transpires during mediations cannot be overstated. These interviews covered the following themes: (i) the suitability of mediating matrimonial cases; (ii) existing patterns in mediation referrals and settlements in such cases; (iii) the impact of gender, literacy, socio-economic profile, and age of parties at mediation proceedings and settlement rates; (iv) the imbalance in bargaining power between parties and the impact of factors such as societal pressure, economic dependence, etc, on mediation proceedings and settlement rates; (v) the impact of the gender of mediators and lawyers on mediation proceedings; and (vi) existing safeguards for mediation in matrimonial cases and their adequacy.

5 Data Analysis

This part analyses the quantitative and qualitative data obtained from the BMC pertaining to matrimonial cases under four heads, that is, cases before the BMC, settlement rates, cases not settled, and non-starters.

5.1 Cases before the BMC

Trial and appellate courts alike regularly refer cases to the BMC for mediation. While cases from the family court and other trial courts in Bangaluru constitute the majority, the Karnataka High Court and the Supreme Court also refer some cases. “Cases before the BMC” for any period is the sum of the cases pending at the beginning of the period and the cases referred to the centre during the period. In each year of the research period, matrimonial cases constituted a significant majority of cases before the BMC; they increased from 62% in 2011 to 73% in 2015, and had a slight and unusual decline to about 68% in 2016 (Figure 2). In absolute numbers, there has been a two-thirds increase in the number of matrimonial cases from 2011 to 2015. This suggests that over time, mediation has gained greater judicial support as an appropriate method of dispute resolution for matrimonial cases (Figure 2). Most cases were referred for mediation in the initial stages of litigation. Some interviewees stated that matrimonial cases were referred for mediation by men and women judges alike, with no discernible patterns along gender lines. Other interviewees cited a lack of data to make observations on gender patterns among the judges referring cases.

Interviewees attributed the general increase in matrimonial cases to at least three factors. First, the legislative push in 1984, with the enactment of the Family Courts Act, urged parties to resolve matrimonial disputes through settlement efforts. Enacted to promote women’s welfare and expedient dispensation of justice, this act set the tone for how justice delivery in “disputes relating to marriage and family affairs” (Preamble, Family Courts Act, 1984)11 has been perceived ever since. Second, there has been a push from within the judiciary, in the form of directions in Srinivas Rao (2013), or otherwise, to explore mediation in such cases. Third, judges have recognised the cost- and time-related benefits of referring matrimonial cases for mediation, leading to a greater number of cases being referred over the years.

Despite believing that mediation is appropriate for resolving matrimonial disputes, when asked if mediation should be made mandatory in all such cases, interviewees had mixed responses. Some argued against mandatory referrals, citing inadequate training standards and the need for consent for mediation to be effective. They also acknowledged the difficulty in addressing complex concerns that may arise while mediating certain cases, especially those relating to domestic violence and cruelty. Others, however, said that the mere existence of a power imbalance between parties and inherent complexity would not render a case unsuitable for mediation; a well-trained mediator could modify the proceedings to adequately address these concerns. For instance, interviewees suggested that the mediator could hold private sessions with parties instead of joint sessions to avoid painful confrontations with abusive spouses. Interestingly, however, all the interviewees lamented the lack of adequate training standards for mediators in India. Therefore, despite differences on whether cases should mandatorily be referred, there seems to be a general consensus that competence and training of mediators is key in deciding whether cases should be mandatorily referred.

Clearly, efforts to ensure that there are enough adequately trained mediators should have preceded the systemic push towards a settlement-centric approach. Although quality mediators are assets to all mediation proceedings, the lack of sufficient training disproportionately affects the parties involved. This is further compounded by the gendered power imbalances in matrimonial relationships.

5.2 Matrimonial Cases and Settlement Rates

5.2.1 What the Numbers Say

Data for the research period reveals that matrimonial cases had the highest settlement rates among all cases referred to mediation. Settlement rates are calculated by viewing cases settled as a percentage of the number of cases in which mediation took place. In 2011, for instance, the settlement rate for matrimonial cases was about 80%, which was nearly twice as high as that for other case types. Although the rate has dropped and the gap has narrowed over the years, matrimonial cases have consistently shown a significantly higher settlement rate than other case types (Figure 3).

Discussions with interviewees indicated that parties in matrimonial disputes are relatively more likely to explore the settlement option, as opposed to parties in other types of disputes. This is attributed to the very nature of matrimonial disputes, since there is greater likelihood of such cases involving continuing relationships, especially where children are involved. Moreover, since matrimonial disputes are often emotionally charged, sessions with a well-trained mediator can ensure that the process does not focus merely on the rights and obligations of parties, but also accounts for parties’ emotional needs and long-term interests.

5.2.2 Factors That Impact Mediation Proceedings and Parties’ Willingness to Settle

Apart from the mediators believing matrimonial cases to be conducive to mediation, it emerged that many additional factors impact the manner in which mediation proceedings pan out, including parties’ willingness to settle the dispute.

Gender of the parties: To understand whether the gender of the parties impacts mediation proceedings, an enquiry into whether cases filed by women conclude in settlements more often than those filed by men was undertaken. Interviewees at the BMC denied the existence of any such discernible pattern. Empirical data on settlement rates for three case types (chosen for their gendered filing patterns)—restitution of conjugal rights cases, maintenance (under Section 125 of the Code of Criminal Procedure, 1973), and DVA cases—confirmed this claim. While restitution of conjugal rights (RCR) cases are usually filed by men, maintenance cases are usually filed by women, and the law permits only women to file DVA cases.12 As depicted in Figure 4 (p 61), annual settlement rates for each of the three case types have largely varied in the range of 40%–56%, suggesting no discernible pattern regarding willingness to settle based on the gender of the party filing the claim. This may also be linked to the background of the cases and parties appearing before the BMC. As confirmed by the interviewees, a vast majority of cases come from urban areas, with a small number also coming from rural Bengaluru. Given the disparity between women’s empowerment in urban and rural areas, perhaps the numbers would have told a different story if the cases were not divided this way.

Other factors: (i) Presence of lawyers: Interviewees emphasised the potential for parties’ lawyers to be assets during the mediation process. Since the mediator is a neutral person, any legal advice in the parties’ interest must come from lawyers, which makes their involvement and support key to a successful compromise.

(ii) Stage of litigation: Interviewees agreed that mediation efforts were usually more fruitful when cases were referred sooner rather than later. Efforts towards settlement tend to be more productive when made before parties harden their legal positions.

(iii) Age: Interviewees identified a clear pattern along age lines, with younger litigants being more willing to explore mediation and settle their disputes rather than engaging in prolonged litigation battles.

(iv) Presence of children: There was consensus among interviewees that parties were more willing to settle disputes if they had children. Given the expediency of mediation and the comfort that a well-trained mediator can provide, one interviewee suggested that mediation is particularly useful when the long-term interests of children are involved, as the duration of the conflict has a greater impact on children than the conflict itself.

(v) Social pressure and economic dependence: Interviewees agreed that the taboo associated with litigating matrimonial disagreements, particularly in divorce proceedings, tends to carry weight when parties are deciding between pursuing a claim in court and settling the dispute through mediation. Moreover, the economic dependence of one spouse on the other also impacts their ability to walk out of a marriage or enforce legal rights (Grillo 1990: 1545–1610).

(vi) Literacy and socio-economic factors: There were differences among interviewees on this count. One interviewee opined that traditional education and socio-economic status play a crucial role in steering mediation proceedings. In cases where parties enjoy socio-economic privileges, the interviewee stated that conversations during proceedings are more about the law; however, the lack of such privilege steers the conversations towards the right or wrong nature of parties’ actions. Other interviewees, however, believed that the socio-economic status of parties had little impact on mediation proceedings, as each person, regardless of their standing in society, is capable of determining what they want. With the advice of lawyers, interviewees stated, all parties are capable of freely arriving at settlements that best serve their interests.

(vii) Gender of the mediators and lawyers: Interviewees said that in matrimonial cases, the presence of women mediators and lawyers often made parties—especially women—more comfortable. One interviewee found it unfortunate that some parties tend to give the gender of the mediator more importance than their skills and training. However, another interviewee believed that due to their personal experiences and social conditioning, women mediators tend to deal with emotionally charged situations in matrimonial disputes better than men. The same was believed to be true of women lawyers.

Affecting women differently: Aspects of seemingly gender-neutral legal processes can often have diverse effects on people of different genders. This has informed several substantive procedural practices that afford protections and privileges for women such as legal aid and special procedural guarantees at the time of arrests (see the Legal Services Authorities Act, 1987, Section 12; Code of Criminal Procedure, 1973, Section 46). In a similar vein, any examination of whether the above factors impact women differently must look beyond the numbers. Although Figure 4 and accounts of interviewees suggest parity in men’s and women’s willingness to settle, interviewees also acknowledged that a gendered difference in bargaining power is common, where the husband enjoys greater power. Thus, even though they believed that settlement agreements at the BMC arise from a free and self-determinative process, evidenced by very few instances of non-enforcement of these agreements, they agreed that the difference in bargaining power manifests in various ways and ties in with many factors mentioned above. For instance, interviewees agreed that factors like economic dependence and social pressure to stay in a marriage impact women’s willingness to settle more drastically than men’s. Literature on mediation from other countries suggests that referral judges and mediators tend to reinforce gendered expectations when dealing with matrimonial disputes (Grillo 1990). For instance, women are expected to be accommodating and not stubborn when attempting to settle matrimonial disputes, whereas men are not held to similar standards (Grillo 1990). Especially where children are involved, the assumption that mothers are more capable of fulfilling parental responsibilities translates into the legal system expecting greater compromises from women.13 Therefore, it is clear that even seemingly gender-neutral factors are gendered in their impact when it comes to mediation inmatrimonial cases.

5.3 Cases Not Settled

High settlement rates mean that only a small percentage of matrimonial cases do not conclude in settlements. During the research period, an average of 27.96% of cases were mediated but remained unsettled. Even so, this percentage has increased each year, from 19.86% in 2011 to 35.05% in 2016 (Figures 5 and 6).

The picture becomes clearer when the figures are presented as absolute numbers. During the research period, the number of cases mediated but not settled more than doubled, from 585 in 2011 to 1,542 in 2016. Even though the number seems insignificant, that it has been increasing every year is a cause for concern. Promoting mediation as the ideal way to resolve matrimonial disputes has meant, as confirmed by interviewees, that matrimonial cases are now mechanically referred for mediation. Even though Section 89 of the CPC envisages application of mind by judges when determining the suitability of a case for mediation, this is a rare occurrence because judges grapple with an ever-increasing case-load (Mukherjee 2014).14 This trend is particularly problematic when one takes a closer look at the types of cases referred for mediation. Nearly 10% of the cases before the BMC during the research period were DVA cases (Table 1). Further, as stated earlier, the Supreme Court has directed courts (Srinivas Rao 2013) to refer cases pertaining to Section 498A of the IPC for mediation, even if the offence was non-compoundable. Referral in such cases without the application of mind by judges runs the risk of damaging parties’ interests. For instance, suggesting that a domestic violence survivor who has approached the Court for relief should attempt to settle her dispute with the abuser(s) not only exposes her to further psychological harm that could come from confronting her abuser(s), but also trivialises her experience.

When asked whether mediation efforts in cases that do not conclude in a settlement could be detrimental to the parties’ interests, most mediators agreed, as the confidentiality of mediation proceedings often encourages parties to be harsh when confronting the opposing party.15 Moreover, if confidentiality is breached, or the mediator is not sensitive to the emotions of the parties, mediation efforts could cause more harm than good. However, interviewees also noted that there is no mechanism in place to monitor the impact of mediation on parties and their disputes, making the effects difficult to measure. Further, they said that providing proper training to mediators could ensure that such problems did not arise. In fact, efforts are made during training to equip mediators so that settlement efforts do not negatively affect the parties. The interviewees’ concerns regarding inadequate training standards and a lack of thought by referral judges highlight the need for this data to be taken more seriously. With the numbers showing significant annual increase, the concerns highlighted here affect a greater number of parties every year.

5.4 Non-starters in Matrimonial Cases

Another data set that illustrates the adverse effect of mechanically referring cases for mediation is the number of non-starters documented by the BMC during the research period. Non-starters are defined as those cases that are referred to the centre by a judge, but where mediation does not commence either due to a lack of parties’ cooperation, the case being unfit for mediation, or any other reason. Although non-starters in other case types have been significantly higher than in matrimonial cases (Figure 7), which indicates that parties in matrimonial cases are more willing to explore mediation than parties in other cases, about 10% of all matrimonial cases before the BMC during the research period were non-starters. From about 6% in 2011, the figure nearly doubled, reaching about 12% in 2015, and experienced a marginal decline in 2016. Interestingly, non-starters for other case types showed little change during the same period.

This indicates that in 1 out of every 10 matrimonial cases over the research period, the referral judge had misjudged the suitability of the case and referred it for mediation. Moreover, since the willingness of parties to consider mediation would have been a factor in determining its suitability for any case, that about 90% of all non-starters at the BMC in the research period were attributed to a lack of parties’ interest or cooperation, is telling (see Annexures to Kumar et al 2016). In fact, the percentage of non-starters nearly doubling during the research period can be seen as a direct consequence of the system pushing for mediation in matrimonial disputes and judges increasingly referring matrimonial cases mechanically, without accounting for parties’ willingness.

6 Concluding Observations

Data from the BMC suggests that India’s approach to resolving matrimonial cases needs immediate reform. There is reason to fear that, in its efforts to provide speedy and sensitive redressal to parties in such disputes, court-connected mediation frameworks may have gone a step too far, thus negatively impacting the interests of vulnerable parties without so much as acknowledging it. Inadequate institutional training of mediators and the absence of a more meaningful process of determining the suitability of cases for mediation are only some of the problems that plague the court-connected mediation framework in India.

Further, issues relating to gender justice have found no mention in the jurisprudence on the issue, which remains shrouded in a rhetoric that prioritises the preservation of the institution of marriage above parties’ individual interests. In a country where access to justice continues to be a fundamental concern and the majority of matrimonial disputes are resolved out-of-court, this rhetoric must give way to evidence-based research that evaluates the impact of this alternate model of dispute resolution, especially on the most vulnerable. Difficult as this may be, this paper is a modest attempt in that direction, and hopefully, further reforms in the field will be guided by more comprehensive data and meaningful involvement of stakeholders (including judges, lawyers, and litigating parties), rather than mere intuition and common sense.

Notes

1 The Bangalore Mediation Centre was one of the earliest court-connected mediation centres, whose operations began in January 2007.

2 Although defined subsequently for the purposes of the data analysis, the term “matrimonial cases” is understood as disputes relating to marriage and includes cases pertaining to divorce, custody, maintenance, restitution of conjugal rights, and judicial separation. Cases pertaining to family property and partition are not understood as part of this category.

3 Although the meaning of the phrase “elements of a settlement” remains elusive, the Supreme Court’s opinion in Afcons (2010) gives some indication as to its meaning: “Section 89 starts with the words ‘where it appears to the court that there exist elements of a settlement’. This clearly shows that cases which are not suited for ADR processes should not be referred under Section 89 of the Code. The court has to form an opinion that a case is one that is capable of being referred to and settled through ADR process.” (Afcons 2010: p 24, 26).

4 For the United Kingdom, see Mediation Information and Assessment Meetings (MIAM), http://www.nfm.org.uk/index.php/family-mediation/mediation-information-m.... For Australia, see Family Law Amendment (Shared Parental Responsibility) Act, 2006, https://www.legislation.gov.au/Details/C2006A00046.

5 See Mediation and Conciliation Project Committee (nd), “Mediation Training Manual of India,” p 16; and Mediation and Conciliation Project Committee, Report no 2, “Model Mediation and ADR Rules.” The report contains a discussion on the responses to the consultation paper on draft ADR and mediation rules and the final model rules.

6 The category of “matrimonial disputes” was not defined in the case and should not necessarily be understood as “matrimonial cases” as defined for the purposes of this paper.

7 Compoundable offences are those in which parties may resolve the criminal case through compromise, after which charges against the accused are dropped. See Section 320, Code of Criminal Procedure, 1973, for a list of compoundable offences under the Indian Penal Code, 1860.

8 This classification is also gendered because statutory protections in matrimonial cases are often intended to protect women’s interests. Any interpretation that lessens the rigour or such provisions, therefore, is necessarily gendered in its impact.

9 Throughout this paper, the term “matrimonial cases” has been deliberately used instead of the more commonly used term “family law cases,” in an effort to make the semantics less value-laden. The social value attached to protecting the family unit, and the connotation of privacy that comes with it, is particularly problematic when critiquing India’s approach towards mediation in such cases. In comparison, the term “matrimonial cases,” which means cases relating to marriage, is relatively less-value laden and, thus, more appropriate in the present context.

10 This paper emerged as an off-shoot of the aforementioned study on the court-connected mediation framework in India conducted by the Vidhi Centre for Legal Policy. As can be seen from the Vidhi Report, data from mediation centres at Delhi and Allahabad were not recorded according to different case types. See annexures to Kumar et al (2016).

11 Moreover, a reading of the Rajya Sabha debates on the Family Courts Bill sheds some light on the legislative intent. Apart from the speedy disposal of matrimonial cases by these specialised courts, one can also glean an unmistakable bias towards preservation of the institution of marriage in the speeches. See Rajya Sabha Debates (1984).

12 While this method is not accurate in determining whether cases filed by women are settled more often than men, in the absence of adequate data, it is certainly indicative.

13 This view is also reflected in certain legal provisions. For instance, see Section 6, Hindu Minority and Guardianship Act, 1956.

14 Data from the National Judicial Data Grid reveal that a total of 2,35,000 cases were pending before the Bengaluru District Court as on 13 January 2017; see http://njdg.ecourts.gov.in/njdg_public/index.php.

15 Interestingly, one interviewee was of the opinion that in no circumstance could mediation efforts be detrimental to parties’ interests, stating that in the event that mediation efforts failed, parties always had the option to resume litigation.

CASES CITED

Afcons Infrastructure v Cherian Varkey Construction Co (P) Ltd and Ors (2010) SCC, SC, 8.

Gian Singh v State of Punjab and Anr (2012) SCC, SC, p 10.

K Srinivas Rao v D A Deepa (2013) SCC, SC, 5.

Salem Advocate Bar Association v Union of India, (2005) SCC, SC, 6.

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