Should mediation be mandatory in all divorce and child custody proceedings?

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picture courtesy: http://mediationreddeer.com/concerns-of-mediation/

This article was written by Nikhil B Gangai  a student of Symbiosis Law School, Hyderabad

INTRODUCTION

          Marriage is a sacrilegious bond. Traditionally and customarily, it is the union of two souls to form one. Divorce is the breaking of this bond by legally prescribed methods. In the contemporary world, this concept of divorce has become very common and the sacred importance that was attached to marriage is now lost. The western civilization is the primary destination of divorces with major divorces in the western countries like United States of America, France, United Kingdom etc.

            In the USA or Britain or any other western country, it can be observed that the rate of divorces is very high and the success rate of marriage is very low. But the method to obtain a divorce in their states is also easy. In India, isn’t so easy. The first prime minister of India, Pandit Jawaharlal Nehru called India as a melting pot as there were and there are still men practicing various religions. Due to this reason, getting a divorce in India isn’t easy. In India, the laws for Hindus and Muslims is different. Moreover, there is a different divorce acts for both. The Hindu Marriage Act, 1955, the Special Marriage Act, 1954, Dissolution of Muslim Marriage Act, 1939, Parsi Marriage and Divorce Act, 1936 and the Divorce Acts, 1869 – 2001.

            This when coupled with child custodial problems pitch the husband and wife against each other and this spite is incurred by the child or the children. Juridicial judges are experts in factual, legal and perspective matters but not in emotional matters. A child needs a stable emotional environment to grow normally. If there is a divorce and the parents fight for the child’s custody, the judgement may be unfair because a child needs both his parents; he cannot and shouldn’t be allowed to choose either one of them. This might result in mental instability of the child.

            Instead, Mediation acts as the perfect method. An expert can also be hired to ascertain what’s best for the child so that the parents get divorced but also to maintain child comfort.Mediationis a process by which the parties are helped by a neutral third party to reach a settlement of the issues in dispute. Where the issue is child custody, it is more beneficial to use mediation than normal court practices.

THESIS

            Marital dissolution usually results in the loss of happiness in the family. It forces the relationships in the family to reorganise and divides the family into different hostile camps. The traditional divorce mechanisms usually induce a certain amount of distrust, anger, ill-feelings between the husband and the wife. Mediation on the other hand, resorts to coercive conversations and cooperative methods to solve the matrimonial issues.

            It so usually happens that the husband and the wife resort to divorce without thinking of the consequences such an action will have on the rest of the family, i.e., the children, their parents etc. Mediation helps them heal their mental wounds amicably and helps them come to an intelligent settlement. It is a well-known fact that divorce can be a complicated process. Alimony, Child support, custody etc can most of the times be a complicated task. Children are also adversely affected when they are forced to experience a battle between their parents over their custody.

            It is a well-established fact that the judges concentrate only on the legal and financial aspects of a matrimonial squabble. They are not trained in the emotional components of a dysfunctioning marriage nor are they particularly interested in spending their time so as to ensure that their judgement would be such that it benefits the family as a whole. The advocates in the court of law also act as adversaries and as a result, in matrimonial matters, no amicable solution is generally arrived at. It generally ends in divorce, child custody fights and alimony matters. Even the client is forced todevote all of his/her attention on the legal aspects of the problem and as a result, he/she will fail to assess the emotional effect it will have on the whole family as a whole.

            Within the legal profession there has been mounting dissatisfaction with the use of the adversarial approach for arriving at divorce settlements. Attorneys are becoming increasinglyfrustrated with their roles in the familycourt system. The courts, too, are beginning to recognize that there must be abetter way to resolve highly emotional familydisputes.

            If it is assumed that the intervention of a third party is necessary to settle broken marriages, then the next obvious question is what kind of intervention would help reconcile the family into a single unit.

            Concern that the rights of children were being neglected through lack of legal representationhas been expressed during the lastseven years by the legal profession andothers. There has been a call by many jurists to have an attorney to fight for the interest of the child in a divorce proceeding.The broken family, not the broken marriage,accounts for the most psychological damageto the children and to the marriage partners.

MEDIATION

Mediation by a neutral third party is an alternative to the traditional divorce model. Although mediation is used as a medium to settle cases in a lot of legal fields like civil issues, it is yet to enter the area of marriage dispute resolution.The major goal of mediation in family disputes is to help thedisputing couple to become rational andresponsible enough to cooperate towardmaking compromises acceptable to both.

            Unlike the adversarial system, the voluntarilyaccepted boundaries of mediation requirethat the parties follow rationality as ameans of resolving the conflictual issues ofdivorce. The parties do not abnegate thepower of decision making but, under theguidance of an impartial mediator, decide forthemselves. The process not only provides fora resolution of conflict but teaches the parties rational procedures which can be transferredto their daily lives after the mediation is completed.

            In around 29 states in the US, the courts are authorised by statute to provide for some form of mediation in divorce cases.

            But even as divorce mediation gains favour with both the public and the legal profession, the process continues to have its share of controversy. Among the questions being raised is just what role lawyers and judges should undertake in mediating divorces. Many private mediators criticize court mandated mediation as an inappropriate application of the process. They argue that, because couples are compelled to participate, mandated mediation takes on the characteristics of arbitration or court orders, which fail to empower ca wife and husband to find their own solutions. In US, Court-directed mediation programs typically do not require mediators to have extensive legal training. Generally, courts require mediators to have at least an undergraduate degree in social work, psychology or a related field, as well as at least 20 hours of additional training. There is no guarantee that a media tor from another discipline will not only be sensitive, sensible and sagacious, but also knowledgeable enough about the law that rights of the parties – as well as their children will be protected.

In a case in the United States,

When a young couple living in another state with their 1-year-old child appeared in that state’s court seeking a divorce, a judge suggested private mediation; they agreed. The mediation resulted in a joint custody agreement. Until reaching the age of 6, the child would shuttle every two weeks between the separate parental residences. The parents agreed that neither would pay support, since they were evenly splitting time caring for the child and they each were earning annual salaries in the range of $50,000. The mediated agreement also provided that the child would, subject to visitation, live with the mother between the ages of 6 and 12, then live with the father from that point until reaching 18. For the first five years, everything went according to the plan, but then the father moved to New York City, where his income jumped to $150,000 per ear, while the mother, who had remarried and moved to Florida, continued to earn some $50,000 annually. The father decided to file a petition that landed before Justice Gangel-Jacob to establish his right to time with the child. The original mediated agreement had become largely unenforceable because it never anticipated that the parents would live so far away from each other. But after Justice Gangel-Jacob reviewed the agreement, the father was dismayed to learn that she was amending it to direct him to pay child support and to leave the child with the mother in Florida even after reaching age 13. Gangel-Jacob says this case illustrates her belief that people under pressure to settle without court supervision will agree to extremely unwise arrangements, and that few of them think through all the ramifications of an agreement that may shepherd the parties through decades of interaction following a divorce.

            As the legal system seeks new ways to help couples at least end their fractured marriages in peace, Justice Gangel-Jacob suggests that other forms of alternative dispute resolution should not be forsaken amid the emphasis on mediation. She also believes dispute resolution programs should be court-sponsored and involve lawyers representing the parties.

            Matters like child custody, alimony, child support etccan also be dealt with in the same way, i.e., mediation.

CONCLUSION

            The fact of parental divorcein and of itself is not as much a determinate of a child’s poor adjustment as isthe post-divorce social and emotional climate in which the child continues to live in.

            Divorce is in itself an unhappy concept. But, when marriages don’t work and it happens to be the cause of constant irritation and tension among the spouses, divorce is a redeemer. It liberates the partners from marital obligations; but while doing that, it tends to destroy family relations. The family is forced to reorganise and hostility and unhappiness is created among the members of the family. No matter what method one employs to facilitate a divorce, a divorce always ends in unhappy situations.

            Mediation is better than most other methods of dispute resolutions but, as Justice Gangel Jacob says, other forms of alternative dispute resolution should not be forsaken.

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