Mediation is a balm that soothes frayed nerves, writes T S Tijoriwala

When an elder in the family passes away, if succession is not planned properly, it leads to discord and disharmony within the family.

Often, property disputes percolate their way into the corridors of the court and we see these acrimonious battles continuing for a long time. In several matters, the majority stake in a corporation is often the issue between family members, who vie for the controlling interest in the business. These disputes are also seen in jointly held businesses and assets, which is still the preferred mode of carrying on business in some parts of India.

As the dynamic younger generation matures, rifts become wider. Personal interests outweigh the concept of ‘joint family’ and differences surface.

Conflicts or disputes arise when family members have different views or have a clash of opinions regarding something. Sometimes conflicts can also occur due to misunderstandings because of which people jump to wrong conclusions and such conflicts can lead to arguments and resentment, if not resolved peacefully.

Litigation in the event of differences destroys the family fabric, businesses & assets: Once matters go to court, we have seen that both parties suffer, mentally and financially. In most cases, matters remain pending and the values of property and business suffer.

Pendency of cases in India

According to the latest update of the National Judicial Data Grid (NJDG) as on the date of writing this article, the total number of civil cases pending in State of Maharashtra are 14,18,076. Of the total pending civil cases, about 80 per cent are more than a year old. Further, what is more alarming is that of the total pending cases, more than 20 per cent of the cases are 5 to 10 years old. There are also cases that have been pending for more than 30 years. This backlog is continuously increasing and is aggravated by the continuous lockdown.

What is the option in the event of a genuine family dispute if redress in a court of law is not advisable: Looking at the alarming increase in the pendency of cases and the fact that a family dispute drains the family resources and all parties involved end up losing no matter the outcome of the legal proceedings, an important option that is forgotten by most is ‘mediation’.

What is mediation and conciliation: Mediation is a process of resolving disputes between parties outside the court of law. It is an alternative out-of-court dispute resolution instrument. Like mediation, conciliation is a voluntary, flexible, confidential, and interest-based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator or mediator, who acts as a neutral third party. It focuses on non-coercive and consensual process to resolve disputes between the parties.

Family disputes, because of their unique nature, are best resolved through mediation. It is the role of a mediator to help the disputants talk and negotiate in a way that it leads them towards a probable solution. The mediator plays the same role in a mediation process as that of a positive catalyst in a chemical reaction, that is the mediator only facilitates the mediation proceedings without taking part in the negotiations.

This method of resolving disputes has gained traction in recent years and has received the blessings of two successive Chief Justices of India.

Soothes frayed nerves and assists in arriving at a ‘win-win’ solution: The overall job of a mediator would be to continuously bridge the gaps in the proposed solutions from both sides in order to arrive at a consensus leading to the satisfaction of both the parties to the dispute.

Approaching a professional mediator: Most of those who approach the court do not know that the practice as a professional mediator has been continuously evolving in India and there are trained mediators who can be approached for a resolution of a conflict in the same manner as you approach a lawyer or a specialist for advice and consultation.

AMP & other reputed organisations: There are several professional organisations which have as their members, trained mediators. They also conduct certified training by experienced, senior mediators. One such reputed organisation is the Association of Mediation Practitioners (AMP), of which this author is also a member. Its members have several successful mediations to their credit and they have been instrumental in bringing about amicable resolution of various family disputes, thereby paving the path of prosperity, abundance and love among family members.

Validity of settlement arrived through a mediator/ conciliator: As per Section 74 of the Arbitration and Conciliation Act, 1996, (A&C Act) the settlement agreement arrived at with the help of a mediator\conciliator shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30.

For a settled agreement to take the colour of an ‘arbitral award’ under the (A&C Act), complete compliance with statutory requirements of Section 73 is required.

The future of mediation

While the pandemic has brought justice delivery to a standstill, it offers an opportunity in the form of online mediation, which can also be leveraged to ensure containment of disputes. The partnership of technology and mediation could be the next solution to our country’s pendency problems and can offer timely and cost-effective resolution. The Government of India has also identified the potential of the use of technology with the NITI Aayog publishing a handbook for online dispute resolution and the income-tax department launching schemes such as ‘Vivad se Vishwas’, to facilitate dispute resolution through alternate means.

(To be continued)

The writer is a trained mediator and a member of the AMP. He can be reached at info@tijoriwalaco.com

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