A DISSERTATION ON

“THE ROLE OF MEDIATION AS A DISPUTE

RESOLUTION
MECHANISMS WITH RESPECT TO
MATRIMONIAL DISPUTES .”

SUBMITTED TO FACULTY OF LAW

THE MAHARAJA SAYAJIRAO UNIVERSITY OF VADODARA

IN PARTIAL FULFILLMENT OF THE REQUIREMENT FOR THE

AWARD OF DEGREE OF BALLB.(HONS)

ACADEMIC YEAR 2023 -2024

___________________ _________________

RESEARCH GUIDE RESEARCH STUDENT

MS.KAVITA BHATIA PATEL DHARA

ASSISTANT PROFESSOR 4TH YEAR BALLB(HONS)

FACULTY OF LAW FACULTY OF LAW

THE MAHARAJA SAYAJIRAO THE MAHARAJA SAYAJIRAO

UNIVERSITY, VADODARA UNIVERSITY ,VADODARA

1
● INDEX
● Dissertation- 2023-24
● Declaration
● Certificate
● Acknowledgement
● Chapter :- 1 Introduction
○ Introduction of Alternative disputes resolution
○ Types of Alternative disputes resolution
○ Introduction of mediation
○ Mediation
○ History and origin
○ Types of mediation
○ Process of mediation
○ Objectives
○ Significant and utilities of the study
○ Hypothesis
○ Scope of the study
○ basic concept
○ Methodology
○ Scheme of the Study
○ Literature review
○ Limitations of the study
● Chapter :- 2 Matrimonial disputes : Role of mediation
○ Introduction
○ Importance of mediation
○ matrimonial disputes & its causes
○ Role of mediation in resolving matrimonial disputes
○ Issues and challenges in matrimonial disputes
○ Advantages of mediation in matrimonial disputes
● Chapter :- 3 Legislative background
● Chapter :- 4 Judicial Approach
● Chapter :- 5 Data Analysis
● Chapter :- 6 Conclusion & Suggestions

2
DECLARATION :-

I, the undersigned,Patel Dhara student of 4th Year BALLB (Hons). hereby declare that the
dissertation entitled “The Role of mediation as a dispute resolution mechanism with
respect to matrimonial disputes” is my own work and has not been copied from any other
work and is done under the guidance and instructions of Ms. Kavita Bhatia, Assistant
professor of faculty of Law, The Maharaja Sayajirao University of Baroda. I further
undertake that the contents of this dissertation if found copied I will be personally responsible
for the consequences.

Date: 16th February 2024 Research Student

Place: Vadodara. Patel Dhara

4th Year BALLB (Hons)

Faculty of Law

The Maharaja Sayajirao

University,Vadodara

3
CERTIFICATE

This is to certify that this dissertation on“The Role of mediation as a dispute resolution
mechanism with respect to matrimonial disputes” is prepared by Ms.Patel Dhara student
of 4th Year BALLB (Hons) Under My Supervision and guidance.The dissertation has been
submitted towards partial fulfillment of the requirement for the degree of law,Faculty of Law,
The Maharaja Sayajirao University of Vadodara ,Gujarat,India. The dissertation contains the
Original work of the candidate.

__________________ ___________________

Ms.kavita Bhatia , Prof.Uma Iyer ,

Assistant professor , OSD Dean ,

Faculty of law , Faculty of law ,

The Maharaja Sayajirao The Maharaja Sayajirao

UniversityVadodara University Of
Vadodara

4
● ACKNOWLEDGEMENT

● During this dissertation work, I have worked with a great number of people whose
contributions have helped me in different ways of research for the making of this
dissertation. It is with great pleasure that I convey my gratitude to them.

● I am very Thankful to my guide, Ms. Kavita Bhatia, Assistant Professor, The Baroda
School of Legal Studies, Faculty of Law, The Maharaja Sayajirao University of
Baroda for giving me her valuable guidance and time whenever and wherever
required for conducting this study.

● My sincere thanks are also extended to Dr. Ghanshyam Solanki , Dr. Archana
Gadekar, Assistant Professor, Faculty of Law and Library Staff of the faculty for
extending their kind cooperation for the successful completion of this dissertation.

● I am supremely grateful to my Parents and Friends for their never-ending support and
encouragement at every stage of my work.

● I would also like to express my sincere gratitude to our benevolent O.S.D Prof. Uma
Iyer for her immense support.

● Finally, I offer my gratitude to all others who have helped me directly or indirectly in
accomplishing this research study.

5
 ● CHAPTER :- 1 INTRODUCTORY CHAPTER

● INTRODUCTION OF ADR :- 1

Alternative dispute resolution (ADR) is designed to settle disputes outside of the courtroom
with the help of an impartial third party. This path is generally accessible after efforts
between the client and the insurer to resolve any differences between themselves fails and
reaches an impasse.When the disputing parties agree to try alternative dispute resolution
procedures, the ADR process starts. This understanding could be imposed by a court order, a
contract clause, or both. It could also be voluntary. The parties select the most effective ADR
strategy for their dispute, frequently with the help of legal counsel. The strategies or types are
discussed in the following section.

During the final stages of the ADR process, the parties negotiate a settlement to the conflict.
If a settlement is reached through negotiation, the parties will create a settlement agreement
outlining the details of their arrangement. The parties must then work to put the provisions
into effect and carry out their respective commitments (i.e., make settlement payment should
that party be found liable). ADR is inadvisable where one party has inherent power over the
other; in this case, it may be more difficult for each party to appropriately approach the ADR
process.

● HISTORY OF ALTERNATIVE DISPUTE RESOLUTION :- 2

The history of ADR can be traced to our historical path. The concept of Lok Adalats
(People‟s Court) is an innovative contribution of India to the World Jurisprudence. India has
a long tradition and history of ADR process like Mediation and Lok Adalat being practiced in
the society at the grass root level, these are called Panchayats. The ancient concept of
settlement of dispute through Arbitration, Conciliation, Mediation or Negotiation known as

1
Dr. S. C Tripathi, Alternative Dispute Resolution 1&2.
2
Brochure on Alternative Dispute Resolution Mechanism in Modern Indian Society by
Mahboob Ali, p.g: 5 Available on
https://ijtr.nic.in/Alternative%20Dispute%20Resolution%20Mechanism%20inModern%20Indian%20So
ciety.pdf Last visited on February 10 ,2024

6
the verdict or decision of “Nyaya- Panchayat” is conceptualized and institutionalized in the
philosophy of Lok Adalat. Concept of mediation has been practiced with great frequency in
the last quarter of the 20th Century. After the emergence of the 21st Century this practice has
been developed with more frequency in the Western countries. Its roots can be traced in the
USA, notably at the Pound Conference in 1976. It was followed by two legislations –
● The Civil Justice Reforms Act, 1990 And
● The Administrative Dispute Resolution Act, 1996.

● MEANING OF ALTERNATIVE DISPUTE RESOLUTION:-

● According to Black’Law Dictionary Alternative Dispute Resolution 3

Alternative dispute resolution or ADR refers to a "procedure for settling a dispute by means
other than litigation, such as arbitration or mediation." Black's Law Dictionary.

● Alternative dispute resolution (“ADR”) refers to any method of resolving

disputes without litigation. ADR regroups all processes and techniques of
conflict resolution that occur outside of any governmental authority. The most
famous ADR methods are the following: mediation, arbitration, conciliation,
negotiation, and transaction.4

● TYPES OF ALTERNATIVE DISPUTE RESOLUTION5 :-

Many insurance policies contain mandatory alternative dispute resolution clauses, depending
on the state. The two most common forms of alternative dispute resolution are mediation and
arbitration, though there are other types as well.

● Mediation
Mediation occurs when an independent third party steps in to try and find a way for the
insured and the insurer to agree on a mutually acceptable outcome. The mediator is not called
3
Alternative Dispute Resolution: Available on https://libguides.okcu.edu/ADR last visited on February
10,2024
4
Alternative dispute resolution: Available on
https://www.law.cornell.edu/wex/alternative_dispute_resolution last visited on February 10,2024
5
Alternative Dispute Resolution (ADR): Definition and Meaning :Available on
https://www.investopedia.com/terms/a/alternative-dispute-resolution.asp last visited on February
11,2024

7
upon to decide who is right but rather to add structure to communication between the
disputing parties, so that they can, hopefully, eventually reach a resolution between
themselves.

● Arbitration
Arbitration occurs when a neutral independent party called an arbitrator listens to arguments
from both sides, collects evidence, and then decides on the outcome of the dispute, similar to
a court ruling. Arbitration can either be non-binding or binding. The latter means the decision
is final and enforceable, while the former implies that the arbitrator’s ruling is advisory and
only set in stone if both parties agree to it.

● Negotiation
Negotiation occurs when there is direct contact between the parties to a dispute. In order to
arrive at a solution that is acceptable to both parties, it enables the parties to debate their
views, interests, and prospective solutions. The parties may choose to negotiate informally
amongst themselves or with the aid of lawyers or other representatives.

● Collaborative Law
In a collaborative law process, the parties and their separate attorneys agree to settle their
differences without going to court by negotiating and coming up with solutions. The
emphasis is on collaboration and coming up with original solutions that satisfy the
requirements of all parties. In many ways, collaborative law may be seen as negotiation as
long as the parties seem to be in stronger correlation to how resolution is to be met.

● Mini-Trial
In a mini-trial, each party's representatives present their case to an impartial third party. That
third party is usually a senior executive or an impartial advisor, and this presentation is part of
a structured negotiating process. In order to assist the parties in reaching a settlement, the
third party offers an assessment or opinion on the likely course of the case. Though this may
mirror a formal court proceeding, it is done in a much more private setting with many fewer
parties.

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 ● INTRODUCTION OF MEDIATION :-

Mediation is a voluntary process in which a trained and impartial third person ,the mediator
helps the parties in disputes to reach an amicable settlement That is Responsive to their needs
and acceptable to all sides . The parties to the dispute have an opportunity to ventilate their
grievances and feelings and thereafter work out of the solutions to meet their interests. 6

● DEFINITION OF MEDIATION:-

● According to Black’Law Dictionary7 :-

Mediation is "a method of nonbinding dispute resolution involving a neutral third party who
tries to help the disputing parties reach a mutually agreeable solution." Black's Law
Dictionary .

● MEDIATION8 :-
Mediation is one of the Alternative Dispute Resolution methods contemplated Under Section
89 of the code of civil procedure enacted by the parliament . Mediation is a process in which
a neutral third party assists the disputing parties to creatively resolve their disputes without
going to trail.

Mediation presents a unique opportunity for dispute Resolution with the involvement and
participation of all the parties and their advocates. A communication technique to help
litigants bridge their differences and find a solution to their dispute. Mediation always leaves
the decision making power with the parties.

A mediator does not decide what is fair or right or apportion blame. Rather , A mediator acts
as a catalyst to bring the two disputing parties together by defining issues and eliminating
obstacles for communication and settlement.
● HISTORY AND ORIGIN9 :-

6
Dr. S. C Tripathi, Alternative Dispute Resolution, 291
7
Alternative Dispute Resolution: Available on https://libguides.okcu.edu/ADR last visited on February
12 ,2024
8
What is Mediation?Available on
https://districts.ecourts.gov.in/sites/default/files/mediation%20annd%20conciliation%2015-04-2021.pdf
Last visited on February 13,2024
9
Mediation In Matrimonial Disputes : Types, Process & Landmark Cases Available on

9
The use of mediation, as an Alternative Dispute Resolution (ADR) mechanism, dates back to
centuries before the British came to India. Back then informal panchayats were used to
resolve disputes between the parties where the respected elderlies of the villages or the
Mahajans were appointed as mediators. To date, Pinchas or Pancha Parmeshwars, as neutral
third parties, are used to settle disputes informally between the erring individuals or groups,
by some tribes in India. However, with the onset of British colonialism, mediation began to
be recognized as a formal and legalized ADR mechanism.

Mediation gained popularity as an ADR mechanism with the re-introduction of Lok Adalats
in the Indian Judicial system. Enacted in1987, the Legal Services Authority Act gave
statutory status to the Lok Adalats in India for the first time. Under this act, the decision of
the Lok Adalats has been awarded the same status as that of a civil court.

The development of mediation as an ADR mechanism can also be attributed to section 89 of

the Civil Procedure Code (CPC), 1908 which was inserted by the CPC (Amendment) Act,
1999 with prospective effect from 1/7/2002. This particular development was due to the
efforts of Hon’ble Mr. Justice A M Ahmadi. Ahmadi, the then Chief Justice of India, had
invited the Institute for the Study and Development of Legal System (ISDLS) to India for a
national legal exchange program between India and the USA.

● TYPES OF MEDIATION10 :-
● Court Referred Mediation– Under Section 89 of the Code of Civil Procedure, 1908,
the court may send a pending case for mediation in India. This sort of mediation is
common in matrimonial issues, especially divorce cases.

● Private Mediation– Qualified personnel works as mediators on a fixed-fee basis in

Private Mediation. Anyone can choose mediators to resolve their issue through
mediation, including courts, the general public, corporations, and the government
sector.

https://www.simplekanoon.com/family-law/mediation-in-matrimonial-disputes-535/ last visited on

February 14 ,2024
10
Mediation In Matrimonial Disputes : Types, Process & Landmark Cases Available on
https://www.simplekanoon.com/family-law/mediation-in-matrimonial-disputes-535/ last visited on
February 14 ,2024

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 ● PROCESS OF MEDIATION11 :-
● Preparation– Before the mediation process begins; the mediator can meet with the
parties and give them instructions on how to go through the processes. He also
clarifies any ambiguities and answers any inquiries that may arise. This talk does not
have to be held face-to-face; it can be conducted over the phone.

● Introduction– First and foremost, the mediator will make opening remarks in which
he will explain his duty as a mediator. The mediator will inquire whether both parties
are in agreement with the process. If both parties agree, the procedures of the
mediation process are followed. If the parties decline to refer the case to mediation,
the Court may impose cost fines as a result of their failure to follow the procedure.

● Statement of Problem– As part of their opening statement, the mediator allows the
parties to explain their difficulties. Because of this, both the parties and the mediator
should have a greater grasp of the issue by the end of these comments.

● Joint Discussion– The mediator will review the concern of both parties and will ask
pertinent questions to gather additional information. He’ll also be able to figure out
which concerns should be resolved first as a result of this debate.

● Private Discussion– Following the combined discussion of the issues, each party is
given the option to speak privately with the mediator and, if desired, with their
lawyers about their concerns. It is a crucial stage that assists the parties in preparing
for negotiations.

● Negotiation– The parties will continue to negotiate until they reach an agreement that
is agreeable to both parties. The mediator finds a solution that protects the interests of
both parties. If the negotiations fail, the case is taken to court.

11
Mediation In Matrimonial Disputes : Types, Process & Landmark Cases Available on
https://www.simplekanoon.com/family-law/mediation-in-matrimonial-disputes-535/ last visited on
February 14 ,2024

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 ● Agreement– The parties are re-assembled once the terms of the agreement have been
agreed upon. The terms of the settlement would be confirmed orally by the mediator,
then written down and signed by the parties. The agreement is enforceable in a court
of law and has a binding effect. In a closing speech, the mediator expresses gratitude
to both parties for their involvement and cooperation throughout the process.

● FOR THE FOLLOWING RESEARCH WORK THE RESEARCHER HAS

FRAMED BELOW MENTIONED BROAD OBJECTIVES :-

○ To Identify the challenges & limitations faced during mediation.

○ To Understand and focus on the strengths and weaknesses of each party's

position.

○ To study the future of mediation as an ADR method.

○ To Understand the role of mediator in Matrimonial disputes.

● SIGNIFICANCE AND UTILITIES OF THE STUDY :-

The study of mediation in matrimonial disputes is significant because it helps us understand
the effectiveness and benefits of using mediation as an alternative to traditional litigation. By
studying mediation, we can gain insights into the various techniques, approaches, and best
practices that can lead to successful outcomes in resolving conflicts between couples.
● The study of mediation in matrimonial disputes is significant and has various utilities.
Here are a few key points:

● Communication and understanding :-

Mediation focuses on open communication and understanding between the parties involved.
It helps them express their concerns, needs, and interests in a safe and supportive
environment.

● Customized solutions :-

12
Mediation allows couples to come up with creative and personalized solutions that meet their
specific needs. It's not a one-size-fits-all approach, which can lead to more satisfying
outcomes.

● Preservation of relationships :-
Mediation aims to preserve relationships, especially when there are ongoing co-parenting
responsibilities. It helps couples maintain a level of cooperation and respect, which is
beneficial for everyone involved.

● Empowerment and control :-

Mediation empowers couples by giving them control over the decision-making process. They
actively participate in finding solutions and have a say in the outcome, rather than leaving it
solely in the hands of a judge.

● Conflict resolution :-
Mediation provides a constructive and collaborative approach to resolving conflicts in
matrimonial disputes. It aims to help parties find mutually acceptable solutions and maintain
a positive relationship.

By studying mediation in matrimonial disputes, we can better understand its effectiveness,

identify best practices, and improve the overall process. It's a valuable field of study that
contributes to the development of more effective conflict resolution methods.

● FOR THE FOLLOWING RESEARCH WORK THE RESEARCHER HAS

FRAMED BELOW MENTIONED BROAD HYPOTHESIS :-

● Mediation is the most suitable mechanism to resolve matrimonial disputes as

compared to litigation.

● Mediation is preferred for matrimonial disputes involving child custody.

● Mediation in matrimonial disputes is the most appropriate process because it's

confidential.

13
 ● SCOPE :-
Mediation in matrimonial disputes has a wide scope. It can help couples address various
issues like property division, child custody, visitation rights, and spousal support. The goal of
mediation is to provide a platform for open communication, explore different solutions, and
reach a mutually agreeable resolution. It's a voluntary process that allows couples to actively
participate in decision-making and find solutions that work best for them. Mediation can be a
valuable tool in resolving conflicts and promoting a more amicable and cooperative approach
to resolving matrimonial disputes.

● BASIC CONCEPT :-
Matrimonial disputes and issues refer to conflicts or problems that arise between married
couples. These can include disagreements about child custody, maintenance, alimony,
property division, and other matters related to their marriage. The basic concept is that when
couples are unable to resolve these issues on their own, they may seek legal intervention or
alternative methods like mediation to find a fair and mutually agreeable solution. Mediation,
as we discussed earlier, involves a neutral third party helping the couple reach a resolution
through open communication and negotiation. It's all about finding a peaceful way to address
and resolve the problems that arise within a marriage.

Mediation in matrimonial disputes is a process where a neutral third party helps couples
resolve their issues outside of court. It's like having a mediator act as a guide to help you and
your partner communicate, negotiate, and find solutions that work for both of you. It's a more
collaborative and less adversarial approach compared to going to court. Mediation can cover
various aspects like child custody, maintenance, and alimony, and it gives you more control
over the outcome. It's a great way to work together and find a peaceful resolution.
● METHODOLOGY :-

The nature of study is empirical as well as doctrinal methods also adopted. The study
material
and information is collected and gathered from primary sources as well as a secondary source
such has books, journals, articles, lawyer, etc. research has been undertaken.

● SCHEME OF THE STUDY :-

The Scheme of this study is divided into Six chapters which are as follows:

14
● Chapter 1 (Introduction): This Chapter is the introductory part of the study. This
chapter presents the objectives of the study and the hypothesis on which it is based
upon. It also includes literature review on the topic of this study, the basic concepts,
scope and significance of the study, the methodology used by the researcher,
limitations of the study etc.

● Chapter 2 ( Matrimonial disputes : Role of mediation ) In this chapter it is written that

what is the role of mediation in Matrimonial disputes and its advantages and
disadvantages.

● Chapter 3 (Legislative Background): This chapter highlights and provides an

overview on the legislative background of the topic of this study from the National as
well as International Perspective.

● Chapter 4(Judicial Approach): The third chapter of this study provides an insight into
some of the landmark judgements pronounced by courts of various countries in
relation to the topic of this study as the Courts have played a major role in refining the
concept of fair use.

● Chapter 5 (Analysis of Data): In this chapter, the data collected by the researcher for
the purpose of the present study is analyzed. All the efforts are made to analyze the
data in the best possible manner and in a precise manner.

● Chapter 6 (Conclusion and suggestions) In this chapter explains the conclusion and
also gives suggestions to improve the situation of mediation in Matrimonial disputes.

● LITERATURE REVIEW :-

● In The Mediation Act, 2023 (No. 32 of 2023) the parliament for the first time
has attempted to streamline mediation and legitimize its increasing relevance
in the life of a dispute, by codifying mediation as a process of alternate dispute
resolution. It was enacted with the objective to promote and facilitate
mediation, especially institutional mediation, for resolution of disputes,

15
 commercial or otherwise, enforce mediated settlement agreements, provide for
a body for registration of mediators, encourage community mediation and
make online mediation an acceptable and cost-effective process.

● Dr. Ritu Gautam in Mediation and Family Dispute Resolution Mechanism: A

Case Study on Clinical Legal Education has drawn attention to the role of
mediation in family dispute resolution as one of the most effective measures.
Over the past 20 years, the legal system has witnessed a fundamental shift in
the nature of family conflicts, particularly those involving children. This
paradigm shift has resulted in the replacement of the traditional adjudication
model with a comprehensive, progressive, and multidisciplinary family
dispute resolution procedure.

● Prof. (Dr.) M. S. Soundara Pandian in An Emergence Need for

Strengthening Mediation in Resolution oof Matrimonial Disputes talked about
the Family Court Act, 1984 which aims to promote gender justice by
empowering women in matrimonial disputes through a non-adversarial
approach. However, the Act has not been successful in achieving its goals,
leading to anger, frustration, and resentment over its functioning over the past
35 years. Despite efforts, family courts continue to play their traditional role,
causing women to suffer with gender injustice. This paper aims to address the
problems faced by family courts and propose mediation as viable solutions for
their improvement.

● LIMITATIONS OF THE STUDY :-

When it comes to studying mediation in matrimonial disputes, there are a few limitations we
should keep in mind. While mediation is generally considered a beneficial approach, it's
important to be aware of its limitations.

16
 ● Complex legal issues :- Mediation may not be suitable for cases involving complex
legal issues that require expert interpretation or where legal rights need to be
protected.

● Lack of enforceability :- Unlike court judgments, mediated agreements may not have
the same level of enforceability, which can be a limitation in certain situations.

● Voluntary participation :- Mediation relies on the voluntary participation of both

parties. If one or both individuals are not willing to engage in the process or are not
committed to finding a resolution, the effectiveness of mediation may be
compromised.

● Limited confidentiality :- While mediation promotes confidentiality, there are certain

exceptions, such as instances where there is a risk of harm to oneself or others.
Additionally, if the mediated agreement needs to be reviewed by lawyers or presented
in court, the confidentiality of the discussions may be compromised.

It's important to recognize these limitations and consider them when studying mediation in
matrimonial disputes. However, despite these limitations, mediation can still be a valuable
and effective approach in many cases.

17
CHAPTER :- 2 MATRIMONIAL DISPUTES : ROLE OF MEDIATION

● Introduction
● Importance of mediation
● matrimonial disputes & its causes
● Role of mediation in resolving matrimonial disputes
● Issues and challenges in matrimonial disputes
● Advantages of mediation in matrimonial disputes

● INTRODUCTION:-

Mahatma Gandhi has said, “My joy was boundless. I had learned the true practice of law. I had
learned to find out the better side of human nature and to enter men’s hearts. I realized the true
function of a lawyer was to unite parties driven asunder. The lesson was so indelibly burnt into me
that a large part of my time during the 20 years of my practice as a lawyer was occupied in bringing
about private compromises of hundreds of cases. I lost nothing thereby — not even money, certainly
not my soul.”12

Disagreements that occur inside a married couple are known as matrimonial disputes. The family,
being the smallest part in society, is constantly challenged by disintegration, disunity, and conflict in
all of its forms. The number of unsuccessful and almost-failed partnerships, as well as arguments and
disputes inside marriages, is progressively rising. Over time, social perceptions of husband-and-wife
partnerships have undergone significant shifts.

The institution of marriage has evolved in the modern world. It is no longer considered to be a
lifelong commitment. A husband and wife are no longer seen as being in a sacred relationship. Many
marriage situations are arising as a result of the environment changing.The court is unable to handle
such matters since it is already overburdened by a growing number of cases. Alternative dispute
resolution appears to be the greatest option available because of this burden. It offers a formal
framework for settling disputes between private parties.For this reason, mediation is mandatory,
particularly when it comes to matrimonial issues.13

● IMPORTANCE OF MEDIATION:-
12
MAHATMA GANDHI, THE STORY OF MY EXPERIMENTS WITH TRUTH, (CWMG, Vol. 44:
190–1).
13
Role of Mediation in Solving Matrimonial Dispute By Yash Dahiya Available on
https://medium.com/legis-sententia/role-of-mediation-in-solving-matrimonial-dispute-b03bd6c0dda5
Visited on February 21, 2024

18
 ● Mediation is really important in matrimonial disputes, It helps couples find common ground
and resolve conflicts in a peaceful way. Through mediation, couples have the opportunity to
express their concerns, listen to each other, and work towards mutually beneficial solutions.
It's a great alternative to going to court because it promotes communication, understanding,
and cooperation. Mediation can also be particularly helpful in determining child custody
arrangements, maintenance, and alimony. It's all about finding a fair and amicable resolution.

● MATRIMONIAL DISPUTES & ITS CAUSES :-

All relationship problems stem from poor communication. Growing impatience among girls is the
major reason behind matrimonial disputes: Major domestic violence cases are a result of girls losing
patience these days. They are out-spoken and rarely care for their in-laws and husband, which is the
major reason behind such disputes. Dowry cases have reduced, but in some cases, girls deliberately
plant a dowry case to take revenge from their husband.14

● Family Restructure:

Recent changes in the family structure, from a joint family system to a nuclear family has caused an
increase in the rate of divorce. Earlier, to resolve disputes and to mediate between the parties a large
number of elderly people were present. Nowadays, this support base is unavailable and in metro /
cosmopolitan cities, the young couples are left to themselves and whenever they get into arguments,
there is nobody to help them; even minor arguments lead to divorce. Not only this, but the joint family
system had a way of supporting family members in situations of hardship or loneliness.

14
Published in Hindustan Times, Neha Arora July 11, 2021

19
 ● Suspicious nature:
Very closely related are certain psychological problems. Common examples are suspicious nature, a
desire to protect or guide in the smallest of situations.Some people have the tendency of correcting the
other partner all the time giving rise to constant frictions.

● Unnatural demands:
Wife is sending out money and other items to support her parents without the husband‟s knowledge
and permission may cause the dispute. To meet the demands husband/wife may be forced to adopt
illegal means to earn money.Husband may force the wife to bring cash or kind from the parental
home. Harassing the husband / wife for providing a large sum of money for marriage expenses of his
or her sister or developing brothers‟ business are also reasons for marital disputes. In-Laws can be a
blessing to a couple, but can also bring tension to a married couple by creating boundaries and clear
paths. Lack of privacy as well as lack of freedom can be translated into reaction, which may look like
a cruel behavior and cause marital disputes.

● Household duties:
Sharing household duties is one of the primary sources of dissatisfaction for couples, early years of
marriage and when both spouses work outside the home.

● Pre-marital Relations:
Wife/Husband may be continuing their relations with their pre-marital boyfriend / girlfriend even
after marriage without knowledge of another partner may cause matrimonial disputes. Excessive
involvement of wife‟s parents and relatives by interference and misguidance in husband‟s life and
dictating him on every domestic matter and insisting the husband also spoils the marital relationship.

● Non-disclosure of real facts :

Sometimes parents of the couple wantonly suppress the real facts related to their wards regarding
education, job, status, property etc. When the opposite party knows the real fact this may cause a
dispute between the couple. Claims of liberty and the need for individual space, characterized by
ambition and the fast pace of life, have created new pressures on marriage28. For many
career-oriented

● ROLE OF MEDIATION IN RESOLVING MATRIMONIAL DISPUTES :-

Mediation is an important instrument for settling marital conflicts because it offers a controlled,
impartial setting where couples may discuss and work out their differences. The following are some
salient details regarding the function of mediation in settling marital disputes:

● Facilitates Communication:
In a private and secure environment, mediation enables couples to freely discuss their needs, wants,
and problems. The mediator makes sure that both sides have the chance to voice their opinions and
assists in facilitating fruitful conversations.

● Encourages Collaboration:

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Working together to discover solutions that both parties can agree on is one of mediation's main goals.
Mediation fosters cooperation and aids in the development of empathy and understanding between the
parties by concentrating on shared objectives and interests.

● Enhances Decision-Making:
Couples can actively engage in the decision-making process during mediation. They have the
freedom to consider several options and make decisions based on their own tastes and circumstances.

● Maintains Relationships:
The goal of mediation is to maintain relationships, particularly when children are involved. Mediation
can reduce tension and preserve a good co-parenting relationship after a divorce by encouraging polite
communication and cooperation.
Mediation plays a crucial role in resolving matrimonial disputes by providing a structured and neutral
environment for couples to communicate and negotiate their differences. Here are some key points on
the role of mediation in resolving matrimonial disputes:

● Cost-Effective and Time-Efficient:

Mediation is frequently less expensive and takes less time than litigation. Couples can avoid
drawn-out court fights and lessen the financial and psychological strain of typical legal proceedings
by using mediation to settle issues.

● Customizes Solutions:
Through mediation, couples can create plans that are unique to their requirements and goals. Because
of the mediation process's flexibility, parties can create customized agreements that are tailored to
their particular situation.

Overall, mediation serves as a valuable alternative to litigation in resolving matrimonial disputes by

facilitating communication, collaboration, decision making , relationship maintaining
cost-effectiveness, and customized solutions.

● ISSUES AND CHALLENGES FOR MATRIMONIAL DISPUTES :-

● The feeling of vanity

Because it affects people's viewpoints, feelings, and decision-making processes, ego has a big
impact on mediation in marriage problems. It may have an effect on one's capacity for
effective communication, readiness to make concessions, and the mediation's ultimate
outcome. It is essential to recognize and deal with ego-related problems in order to promote
positive communication and arrive at win-win solutions in marriage conflicts.

● pressure from family

Family pressure affects parties' judgments, emotions, and communication styles, which can
have a substantial impact on mediation in marriage disputes. It might make it more difficult to
maintain an impartial mediation setting and come to mutually acceptable conclusions.
Effectively handling and addressing family strain is necessary to promote positive
communication and enable mediation procedures to be successful.

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 ● ignoring the vested interests of all parties
Without the influence of outside interests, mediation in matrimonial issues seeks to promote
candid conversation and mutual agreement between the parties. Its main goals are to promote
understanding and come to a decision that takes into account the needs and worries of the
parties directly involved in the conflict.

● Consistency of personal interest

Following one's own interests during a mediation session for a marital conflict might impede
the process by introducing biases and roadblocks to a just settlement. To successfully navigate
the mediation process, it is imperative that both parties prioritize understanding, open
communication, and compromise. Through the emphasis on mutual understanding and the
welfare of all parties involved, mediation can result in a more enduring and fulfilling
resolution.

● ADVANTAGES OF MEDIATION IN MATRIMONIAL DISPUTE :-

● Following are the advantages of Mediation:15

● Quick process: A mediation of contradictions can happen very quickly since it takes far less
time for the parties and the mediator to prepare for the mediation than it does for a trial or
arbitration. This makes mediation fast. Furthermore, once mediation starts, the mediator can
focus on the points that they believe are crucial to getting the parties to agree on; this allows
them to make the best use of the parties' time and resources by avoiding time-consuming
evidence. Even when gathering all the evidence has already taken place, mediating a dispute
usually takes less time than doing it in court.

● Flexible: There isn't an ideal mediation formula. Diverse Mediators utilize various styles.
Processes are frequently changed to meet the needs of a particular situation. Even during a
trial or prior to the start of any official judicial procedures, mediation may take place.

● Cost-Effective: Mediation is an inexpensive option. Mediation is always less expensive than

other forms of conflict resolution since it typically involves less preparation, is far less formal
than trial or arbitration, and may take place early in the disagreement.

● Brings Parties Together: In times of conflict, such as in a family or corporate dispute,

parties can preserve and occasionally even restore their relationship.

● Convenient: The parties have considerable control over the date, time, and nature of the
proceedings. The convenience of the courts has no bearing on scheduling.

● Creative: It is also feasible to reach resolutions that cannot be reached through arbitration or
judicial decision-making. A skilled mediator helps the parties identify options that may not be

15
BENEFITS AND ADVANTAGES OF MEDIATION Available on
https://viamediationcentre.org/readnews/MjUx/BENEFITS-AND-ADVANTAGES-OF-MEDIATION
Visited on February 21, 2024

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 obvious or accessible during the standard dispute resolution procedure. The variety of
conflicts a mediator may face is the only thing that restricts innovative solutions.

● Confidential: During mediation, words are frequently kept private. Mediation is a low-key,
private dispute resolution process that allows parties to avoid the spotlight. It is common for
people to make statements to the mediator that are just meant to aid in the mediator's
knowledge of how to resolve the conflict. Since candor increases the likelihood that a
problem will be resolved, confidentiality fosters candor.

● Decide: Both parties have the option to end the mediation at any time if they believe it is not
in their best interests. They also decide how the mediation turns out.

● Direct Communication: Parties communicate directly with each other during mediation.If
neither of the parties is represented by an advocate, then at least the parties are aware that they
will be heard by the mediators.

The primary features of mediation are that it's an interest-based, confidential, voluntary, and
non-binding process. After the initial meeting, the parties are free to end the mediation at any
moment. The parties concerned are frequently left to their own devices and are free to accept or reject
a negotiated settlement. The parties' options won't have any lasting effects after the mediation
procedure thanks to the confidentiality provision.

CHAPTER:- 3 LEGISLATIVE BACKGROUND

Mediation is a settlement process in which a mediator is appointed by either a person or the

courts who helps both the parties to reach an amicable agreement that is responsive to their
needs and agreed upon by both sides. According to Section 16 of the Civil Procedure
Alternative Dispute Resolution and Mediation Rules, 2006, the role of a mediator is to

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facilitate voluntary dispute resolution of parties and convey the view of one party to the other,
help them in identifying issues, reducing misunderstandings, clarifying priorities and
exploring areas of compromise.

Section 89 of the Code of Civil Procedure empowers the civil courts to refer matters to
Alternate Dispute Resolution (ADR). However, as per the provisions of this section, consent
of both the parties is a prerequisite in order to refer the case for ADR and this is a crucial
issue as it can be observed in most matrimonial disputes that one of the parties is a
non-consenting party.

● [Section 89 of Civil Procedure of Code, 1908 and Order XXXII-A of the Code of
Civil Procedure, 1908 focuses on the judge's role in attempting a reconciliation.
provides for an 'Alternative Dispute Resolution' mechanism to be followed in the
cases where there is a possibility of a settlement. Mediation is one of such techniques
prescribed in Section 89 for reaching an amicable solution. However, under this
section consent of both parties is necessary and many times in matrimonial disputes
one party is unwilling to go for mediation.
● Civil Procedure-Mediation Rules, 2003 have introduced mandatory mediation which
empowers the Courts to send matters for mediation even when both parties have not
consented to it, when there is a scope for reconciliation and the relationship between
the parties is such that it needs to be preserved like matrimonial disputes.

● Same is laid down in Section 34 (3) and 34 (4) of the Special Marriage Act, 1954
making reconciliation as the option to be opted by Court at first instance in divorce
cases.]16

● As per the provisions of sections 23(2) and 23(3) of Hindu Marriage Act, 1950 the
Courts are directed to make an endeavor to bring reconciliation between the parties
seeking a divorce according to the facts and circumstances of a case.

16
Mediation: Clearing the Minefield of Matrimonial Disputes Available on
Https://www.legalserviceindia.com/legal/article-620-meditation-clearing-the-minefield-of-matri
monial-disputes.html ( Last visited on february 26, 2024)

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 ● Section 9 of the Family Courts Act, 1984 expressly lays down the duty of Family
Courts to persuade the parties to come to a settlement.

From the aforesaid statutes, it can be observed that the motive of Indian law is the
preservation of marriage and therefore, courts are obliged to refer matters for reconciliation
and settlement whenever there’s scope for settlement.

A divorce has a magnanimous impact on the lives of the parents and their children. The role
of the mediator is to emphasize the mental agony and trauma that a child would have to face
on account of the breakdown of marriage of his/her parents and advise the parents to analyze
all the consequences of their decision. After the mediator has communicated all the possible
repercussions to the parties, the mediator should ask them to take the final call.17

CHAPTER :- 4 JUDICIAL APPROACH :-

In the absence of law which regulates mediation, proceedings take place as per the rules
prescribed by each court. However, In The case of Salem Advocate Bar Association v.

17
Role of mediation in matrimonial disputes Available on
https://viamediationcentre.org/readnews/MTY5/Role-of-Mediation-in-Matrimonial-Disputes (last visited
on February 26, 2024)

25
Union of India, the Supreme Court opined that there is a need for regulating mediation
proceedings on account of the absence of framework rendering Section 89 ineffective.

● M/S. Afcons Infra Ltd & Anr v. M/S Cherian Varkey Construction

The Supreme Court, in the case of M/S. Afcons Infra Ltd & Anr v. M/S Cherian Varkey
Construction,said that the court has the discretion to opt for any of the methods. However,
practical application of the rule says that ‘after the pleadings are complete and after seeking
admission/denials wherever required, and before framing issues, the court will have recourse
to section 89 of the Code.’ In cases when the questions are complicated or cases which may
require several rounds of negotiation, the courts may refer the matter to mediation. In
court-referred mediation, there cannot be any appeal or revision against the decree passed
based on such a settlement agreement. In family and matrimonial cases, the ideal stage for
mediation is immediately after service of the respondent and before the filing of written
statements/objections by the respondent.

● M.R. Krishna Murthy v. New India Assurance Co. Ltd and Others,

In the recent case of M.R. Krishna Murthy v. New India Assurance Co. Ltd and Others,
the Supreme Court recommended to the Government to enact an Indian Mediation Act as
there is a dire need for it. Eventually, legislatures will allow individuals to decide their own
matrimonial destiny and courts would rather not deal with divorce disputes.

● Srinivas Rao v. D.A. Deepa18

● Offense punishable under section 498 A of IPC can be referred for mediation if the
parties willing and court fees that there is an element of settlement.
● All mediation centers shall set up pre-litigation desks clinics, give them wide
publicity and make efforts to settle matrimonial disputes at pre-litigation stage.

In K. Srinivas Rao v. D.A. Deepa, The Supreme Court discussed the idea of pre-litigation
mediation in the context of family disputes. In the case, the husband prayed for a divorce

18
Air 2013 SC 2176

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decree on the ground of mental cruelty as the wife had filed a false criminal complaint against
him and his family. The Court placed a lot of importance on the benefits of pre-litigation
mediation as a form of dispute settlement and granted divorce to the husband. The Court
acknowledged that disputes arise due to trivial reasons that are solved by pursuing litigation.
It was also observed that data from the Delhi district courts show that chances of successful
resolution are higher when parties approach mediation at the earliest instance. The Supreme
Court directed all family courts to set up and publicize pre-litigation clinics at all mediation
centers.19

● S Krishna Murthy vs. B.S Nagaraj and Ors20

●
In this case, Justice Markanday Katju held that lawyers should advise their clients for
mediation, especially where the dispute is family in nature. Otherwise, the litigation goes on
for years and decades which is detrimental to both parties.21

As stated by Justice Markanday Katju in B. S. Krishna Murthy & Anr. Vs. B. S. Nagaraj
& Ors., S. L. P (Civil) No. (s) 2896 of 2010, we believe that attorneys ought to counsel their
clients to attempt mediation as a means of settling conflicts, particularly when familial or
commercial relationships are at stake. If not, the lawsuit often ends up devastating both
parties and dragging on for years or even decades. Therefore, in this case, both the litigants
and the lawyers should heed Mahatma Gandhi's instructions and attempt arbitration or
mediation. Section 89 of the Code of Civil Procedure serves the same function.The case was
a disagreement between two brothers, who were instructed to go before Bangalore Mediation
Center in order to settle their differences.Aviral Bhatla Vs. Bhavana Bhatla, 2009 (3) SCC
448 is a recent case in which the Supreme Court upheld the Delhi mediation center's
settlement, praising the efficient way in which the Delhi High Court's mediation center
assisted the parties in reaching an agreement.

19
Role of Mediation in Solving Matrimonial Dispute By Yash Dahiya Available on
https://medium.com/legis-sententia/role-of-mediation-in-solving-matrimonial-dispute-b03bd6c0dda5
Last Visited on February 28, 2024
20
Special leave Petition (civil) No(s) -2896 Of 2010
21
Role of Mediation in Solving Matrimonial Dispute By Yash Dahiya Available on
https://medium.com/legis-sententia/role-of-mediation-in-solving-matrimonial-dispute-b03bd6c0dda5
Last Visited on February 28, 2024

27
 ● G.V. Rao vs. L.H.V. Prasad22

In this case, the court held that marriage is a child-centric heterosexual institution in our
society. However, if marriage as a unit breaks down, the adjustments of various relations are
required rupturing the usual structure and peace of the family. So, the family laws and courts
mostly encourage matrimonial disputes for reconciliation and settlement by amicable
agreement instead of litigation.

● Gaurav Nagpal vs Sumedha Nagpal, AIR23

In the case of Gaurav Nagpal vs Sumedha Nagpal, AIR 2009 SC 557, the Hon'ble
Supreme Court observed: It is a very disturbing phenomenon that large numbers of cases are
flooding the courts relating to divorce or judicial separation. The provisions relating to
divorce in HMA categorize situations in which a decree for divorce can be sought for. Merely
because such a course is available to be adopted, should not normally provide incentive to
persons to seek divorce, unless the marriage has irretrievably broken. Efforts should be to
bring about conciliation to bridge the communication gap which lead to such undesirable
proceedings. People rushing to courts for breaking up marriages should come as a last resort,
and unless it has an inevitable result, courts should try to bring about conciliation. The
emphasis should be on saving marriage and not breaking it. As noted aboveYou it is more
important in cases where the children bear the brunt of dissolution of marriage24.

● Jagraj vs. Bir Pal Kaur

In Jagraj vs. Bir Pal Kaur, it was held by the Supreme Court that the intention of the
parliament behind enacting section 23 of Hindu Marriage Act, 1955 was to preserve the
sanctity of marriage. Therefore, every step towards the reconciliation of parties has to be
carried out by the courts.¹³

22
Special leave petition (Crl ) No - 3164 Of 1999
23
2009 SC 557,
24
https://www.legalserviceindia.com/legal/article-620-mediation-clearing-the-minefield-of-matrimonial-d
isputes.html

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● With the changing scenario, a number of cases involving matrimonial disputes are
coming forward. The number of petitions involving such disputes leads to a judicial
backlog. 'Alternative Dispute Resolution' provides for a legal structure for resolving
issues involving private parties. Matrimonial litigation is disproportionately
burdensome to our Courts. Marriage in India is considered as a sacrament and not a
contract. Mediation is merely a facilitator that helps the parties to reach for a
settlement in dispute. Here parties get more flexible because of the friendly
environment unlike courts, which are not so friendly in nature, it is free from complex
procedures, easy to understand and, therefore, parties cooperate pleasantly. Mediation
serves as a very helpful dispute mechanism in the case where, divorce are due to
cruelty, unsound mind, some communicable or dangerous diseases etc. in cases like
these, such matters can be communicated and confessed easily and effectively
because their confessions will not go outside the room. It is a private and confidential
mechanism, unlike Courts whichf are open to the public. Mediation provides the best
platform in divorce cases as it helps parties in arriving at a settlement peacefully

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CHAPTER :- 5 DATA ANALYSIS

● This chart is titled "Age group" with 108 responses. The chart segments represent different
age groups:Below 18 Years, 18 to 25 Years, 25 to 35 Years, 35 to 45 Years, and Above 45
Years. The largest segment, covering approximately 75% of the chart, appears to be the 18 to
25 Years age group. The exact percentages for each group are not visible. Below the pie chart,
there is text that is not fully legible, but it seems to relate to a question about awareness of a
certain topic.

● This chart with the title "Are you aware about the Alternative dispute resolution process?" It
shows that out of 108 responses, 88% of the participants are aware (Yes) and 12% are not
aware (No) of the Alternative dispute resolution process.

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 ● This chart with the title "Do you know about the Mediation process?" It shows that out of 108
responses,92.6 % of the participants are aware (Yes) and 7.4 % are not aware (No) of the
Mediation process.

This chart with the title "When it comes to solving Matrimonial disputes, mediation is the preferred
method." It shows the responses of 108 participants regarding their agreement level with the
statement. Here's the breakdown of the responses:
● Strongly Agree: 38.9%
● Agree: 36.1%
● Neutral: 21.3%
● Strongly Disagree: 2.8%
● Disagree: 0.9%

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This chart with the title "Lawyers need to advise the disputant parties to explore the mediation process
as an alternative to litigation." It shows the responses of 108 participants regarding their agreement
level with the statement. Here's the breakdown of the responses:
● Strongly Agree: 37%
● Agree: 42.6%
● Neutral: 15.7%
● Disagree: 1.9%
● Strongly Disagree: 2.8%
The chart indicates that a majority of the participants agree or strongly agree that lawyers should
advise parties to explore mediation as an alternative to litigation. A significant portion disagrees, and
a small percentage of participants are neutral. There are no participants that strongly disagree.

32
This chart with the title "Litigation in Matrimonial disputes causes adverse psychological impact on
the parties to the dispute and their families." It shows the responses of 108 participants regarding their
agreement level with the statement. Here's the breakdown of the responses:
● Strongly Agree: 13.9%
● Agree:37%
● Neutral: 17.6%
● Disagree: 7.4%
● Strongly Disagree: 24.1%

● This Chart Title: "Which mechanism is preferred in case of a family dispute?" Number of
responses: 108 This Chart shows two sections:
● Mediation: 88%
● Litigation: 12%
From this data, we can summarize that a significant majority of the respondents prefer mediation over
litigation as a mechanism for resolving family disputes.

33
● This Chart with the title "Mediation helps to resolve issues pertaining to child custody and
visitation arrangements effectively." It shows the responses of 108 participants regarding their
agreement level with the statement. Here's the breakdown of the responses:
● Strongly Agree: 33.3%
● Agree: 42.6%
● Neutral: 18.5%
● Strongly Disagree: 1.9%
● Disagree: 3.7%

34
This chart Title: "Mediation needs to be a mandatory process in case of matrimonial disputes where
children are affected with the due process of law."Number of responses:
● Strongly Agree: 35.2%
● Agree: 46.3%
● Neutral: 14.8%
● Strongly Disagree: 2.8%
● Disagree: 0.9%

35
This chart with the title "The Advantages of mediation process is/are" It shows that out of 108
responses,Advantages was mentioned below.

● Cost effective
● Less distressing
● Quickly and time efficient
● Confidential
● Informal and flexible

1. Cost effective
● Strongly Agree:- 47
● Agree:- 38
● Neutral:- 21
● Strongly disagree:- 1
● Disagree:- 1

2. Less distressing
● Strongly Agree:- 41
● Agree:- 37
● Neutral:- 25
● Strongly disagree:- 3
● Disagree:- 2

3. Quickly and time efficient

● Strongly Agree:- 44
● Agree:- 38
● Neutral:- 22
● Strongly disagree:- 1
● Disagree:- 3

4. Informal and flexible

● Strongly Agree:- 47
● Agree:- 39
● Neutral:- 17

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 ● Strongly disagree:- 2
● Disagree:- 3

5. Confidential
● Strongly Agree:- 47
● Agree:- 35
● Neutral:- 19
● Strongly disagree:- 2
● Disagree:- 5

CHAPTER :- 6 CONCLUSION AND SUGGESTIONS

● CONCLUSION :-

Matrimonial disputes account for the majority of cases referred to mediation in court- administered
systems. As a result, society requires mediators in this area that can handle disputes with compassion
and empathy and assist parties in finding solutions to the issue of the dissolution of deeply personal
relationships. Parties will quickly discover that mediation far outweighs the other types of conflict
settlement, and they will seek it out sooner rather than later.

Marriages cannot be quickly dissolved or interrupted because it is in the best interests of society's
peace. It is in the public interest to preserve matrimonial relations and, to the extent practicable, to
prevent them from being disrupted at the request of any of the parties to a marriage. This form of
conflict resolution not only saves time, but also reduces acrimony and strained relationships that may
arise from litigation. In India, mediation is becoming increasingly common, especially in the case of
marital disputes.

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If relief is deferred in a marital proceeding, the whole object of relief is nullified, and the parties are
physically and emotionally wrecked, with little to no hope of remarriage. Alternative conflict
resolution strategies are preferred to maintain future relationships and should be the remedy for peace.
The situation was so tumultuous that there has been an unprecedented increase in divorce proceedings
in recent years, but mediation provides a ray of hope for many couples seeking to settle their
differences. Via advice and conciliation services, it is our duty to protect marital relationships.

● SUGGESTIONS:-

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