Divorce Mediation in India is a new process of divorce in which the husband and wife meet with a third party (mediator) who is experienced and skilled to solve the cases related to divorce. He helps the husband and wife to solve the dispute through the process of Mediation.
What is mediation?
Mediation under ADR is a process to solve the dispute between two or more parties by adding a 3rd neutral party. This third party works as a catalyst to solve the dispute on the mutual decision of parties.
The process of mediation is defined under alternative dispute resolution. ADR provides various processes like negotiation, arbitration, mediation and conciliation to solve the dispute.
What is divorce mediation?
Divorce mediation is a process where spouses meet a trained, experienced and neutral mediator who helps them to resolve the issues related to their divorce. The process of divorce mediation can take place online and offline according to the comfort of parties.
It is the best process to solve the case of divorce because the divorce proceedings in court take lots of time due to the heavy load on the courts. Divorce mediation is a fast process and less costly than court proceedings. In some cases of divorce, the court may also order both the spouses for the process of mediation so that they can solve a dispute outside the courtroom.
The divorce in India is a lengthy process but a mediator can help both the spouses to make an agreement between them to settle the issues related to property, children, maintenance, etc.
Who is a mediator in divorce mediation?
The mediator is not the person who gives the legal advice or decision in the process of divorce Mediation, he is 3rd party who just helps both spouses to figure out what is the best way to solve their dispute.
It is the duty of the mediator to make the preceding confidential. He cannot share the personal details of the case with anybody. Also, the proceedings of the mediation have no documentary record so it makes more trust to solve the dispute of divorce with the help of mediation.
Benefits of Divorce Mediation
Divorce Mediation has many benefits than simple litigation in the court for a divorce.
The process of mediation is less expensive than the trial in court. It will save your Court fee and other charges like fees for the service of summons etc.
Mediation is a fast process in a court. A mediator can solve the case just in 2-4 meetings. Divorce Mediation can take a little bit more time than other cases in mediation because divorce is a sensitive case. It needs to solve different issues related to the children and property also.
A mediator is a neutral person
A person who is going to assist both spouses in the process of mediation is a neutral person. It means he will not take the side of any party. He just suggests and encourages both the parties to settle their dispute mutually.
Settlement of the issues
Almost all the mediation ends with settling the issues in the dispute. Mediation is a process in which mediators help both parties to settle the dispute on a mutual decision. This method solves the problem in almost every case.
Divorce Mediation is a confidential process. Although the person is not compelled to give his personal information in the process of Mediation, if a person really wants to give his confidential information in front of the mediator, the information will remain confidential. Also, there will be no public record of what is going on in your case.
Remove stressful proceedings
The mediation process is done in a way that a person feels free from the stress which he will feel in the courtroom. It becomes tough to discuss family issues in front of the audience. Divorce Mediation is a process where you are just with one new person. It builds the confidence in the person to give his views related to the issues and the person feels less stress.
Freedom of decision
The mediator does not give any decision in the divorce Mediation, he just encourages both the parties to settle the dispute by giving ideas that are best for both of them. Parties are not bound to settle their dispute with the help of ideas given by a mediator nor is any decision imposed on the parties like the decision of the court. The decision taken by both parties will be final to solve all the issues related to divorce.
Control over the process
In divorce Mediation, it is the spouses who are controlling the process of divorce Mediation. The spouses are free to choose the dates for processing, place to proceed and even the process of mediation also. All the control will be in the hands of the parties only.
Divorce Mediation is a process in which there are only three parties in a room. It encourages the spouses to communicate with each other so that they can find the solution to solve the issues arising in the dispute. The process of Mediation helps both parties to solve the issues and avoid any future conflicts.
Decision not binding
It is the right of the party that they can even take the help of another person to solve the dispute. Neither the parties are bound to solve their dispute with the process of mediation, nor bound by law to accept the decision of the mediator. They can ask to close the process of divorce Mediation anytime and go to the court for the divorce proceedings.
Disadvantages of divorce mediation
Under mediation, a mediator cannot compel or force the parties to give their statements or accept the decision made with the help of the mediation process. Even either of the parties can ask to stop the process of mediation between the proceedings. There is no meaning of mediation if one party is not cooperating. There must be the involvement of both parties to make the divorce mediation successful.
Conditions when you should not go for divorce mediation
Mediation is a simple and easy process to solve the case of divorce but there are many circumstances in which you should not go for divorce mediation. These situations can be as follows:
If there is any domestic violence is involved in the case of divorce, you should not go through the mediation process. The divorce due to domestic violence is a separate and criminal case. The process of Mediation does not solve Criminal cases.
Threat of security
The courts are considered as more safe places because it’s public place. The mediation process is done in a separate place. Although it is also a safe process, still, if you feel that it can threaten your security, then you should definitely not go for mediation.
Fear of children safety
If you think that your children’s safety was under threat when you took the decision to divorce, you should not go for the process of mediation to solve your dispute. Because to settle the case of divorce, a mediator also settles the dispute of child custody.
Hiring of advocate
There is no need for any advocate or lawyer for the process of mediation. But, if your spouse has hired the advocate for the proceedings, you should also hire a divorce lawyer for yourself. He will assist you in the case and can also give you legal advice related to your case. A divorce lawyer knows every law related to your case. He can better assist you.
Spouse is untrustworthy
If you feel that your spouse is not a trustworthy person, and he/she can speak lies to the mediator, the process of mediation will not be worth your time. In a case where a person doesn’t speak the truth, it cannot make a mediation process successful. In such a situation you should approach the court of law to deal with your case.
Spouse wants to delay the proceeding
If you think that your spouse is trying to delete the proceedings of the mediation, you should not continue with mediation. A mediator cannot order any of the people or he cannot compel the person to join the proceedings of mediation. If a person is not willing to solve his case, he can make thousands of excuses to delay the process of mediation.
A diverse in which there are no circumstances given above, you and your spouse can take the divorce mediation to solve the dispute. It is a great option to solve any case except criminal cases.
The process of divorce mediation
Divorce mediation is a voluntary process, any of this suppose can use the process of mediation. The process of mediation can start in two ways:
- Judge gives an order of mediation
- You and your spouse are mutually decided to solve your divorce with the process of mediation
In a case where a judge orders a dispute to be resolved in the process of mediation, the court may appoint a mediator who is a retired judge or a senior advocate and he will be an expert in his field. The parties can also appoint the mediator with mutual consent.
In a situation where you and your spouse have mutually decided to solve your problem with the process of mediation, you can appoint the mediator with mutual consent or can ask the court to provide a mediator.
After the appointment of a mediator, he will ask you to assist or provide the background information about your marriage, your family and issues occurring in your divorce. The mediator can also ask both parties to write their mediation statement.
The mediator may also ask both parties to sign an agreement of confidentiality. The agreement will say that you understand that a mediator cannot disclose any fact or confidential information related to the process of mediation.
Place of mediation
It is the choice of the party that they can choose the online mediation also. But if the parties are comfortable with offline mediation, they can decide on a place where the process of mediation can be done. Usually, the mediation sessions are held in a conference room or a comfortable office where both parties can come.
Proceeding of mediation
It totally depends upon the mediator that he can invite both the spouses in one room or he may also invite the spouses differently for private discussions. Usually, in a case where the spouses have their divorce lawyers, the mediator prefers them to meet privately.
Issues under Divorce Mediation
After the meeting with both spouses, the mediator will frame the issues on what both parties do not agree on. The issues in divorce mediation can be:
- Distribution of property
- Child custody
- Parenting time
After the framing of issues, the mediator will tell them the issues, and he will and grace both the parties to communicate with each other so that they could settle their issues mutually. The mediator will provide the best ideas for the spouses to solve that issue.
Completion of Arguments
After the completion of arguments and discussions between both spouses, the mediator will create an agreement. There can be three situations:
- All the issues framed are solved
- Half of the issues are solved
- None of the issues is resolved
In a case where none of the issues is resolved through the divorce mediation, the mediator will submit his report in the court of law by saying that the mediation process has been filled to solve the dispute.
But in a case where all or some of the issues are solved, he will make a written statement in which he will write all the issues which have been solved and will take the sign of both the parties that they are mutually agreed to settle this dispute.
The parties can accept or reject the issues solid in the divorce mediation.
After making the sign of both the parties, the mediator will submit his report in the court of law. The court may accept or deny the report.
After accepting the report, the court may take the proceedings on the issues which are not settled with the help of divorce mediation. At the time of the final judgement, the court may also attach the statement of divorce mediation in which some of the issues were solved.
FAQ related to the Divorce Mediation
Where can I find a mediator for divorce mediation?
You can contact online mediation services or you can ask the bar association or court clerk for a mediator. They may provide you with the list of mediators appointed by the court in previous divorce matters. You can choose any of the mediators according to your comfort.
How many mediators can be in the process of mediation?
There is no limitation on the number of mediators. Both parties can mutually decide the number of mediators to solve their dispute. But it should always be kept in mind that the mediator must be chosen mutually.
Can I solve every type of case in the process of mediation?
No, the process of mediation cannot be done in criminal cases. The cases related to civil matters, money matters and divorce matters etc., can be solved with the process of mediation.
Can I need a lawyer for Divorce Mediation?
No, there is no need for a lawyer or advocate for Divorce Mediation. A person can discuss his or her facts himself/herself. Although there is no restriction to get your advocate there, in many cases, the mediator discourages having an advocate present in the process of divorce Mediation because sometimes it happens that the presence of more people in the process can create hindrance and tension.
When spouses can take the help of mediation for divorce?
The judges of the court also prefer divorce Mediation to solve the case with the process of mediation. A spouse can take the help of the mediation process before filing the case of divorce in the court or even after filing the case in the court.
Divorce mediation is the simplest and fast process to solve the issues arising in the matter of divorce. In today’s life, nobody has more time to go into the court of law to solve their dispute. With the process of divorce mediation, the spouses can solve their disputes online by appointing a mediator.
Due to the heavy load on the courts, the court is also encouraging the number of spouses to solve their divorce with the help of the mediation process.
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