INTRODUCTION

The ordinary human inculcates a nature of social dependency. People have always had the tendency to group themselves into families to nourish and support each other emotionally and physically and communal cooperation as well, from the very beginning of human life. Marriage and family are perhaps the society’s oldest and most resilient institutions. These families form the heart and soul of the human society.

Family institutions have gained surpassing importance in the past few decades. An individual has various duties and obligations that he is expected to perform towards others in a society and the benefits of living in a family come in handy at such times. A family provides all the basic needs that are necessary and vital for the people living in a society.

CAUSES OF FAMILY DISPUTES

The main cause of disputes in families has been supposed to be a clash of opinions or a difference of views with respect to something. People tend to misunderstand statements and jump to wrong conclusions which often lead to conflicts. Such conflicts can easily turn into arguments and cause resentment and dissatisfaction if not resolved peacefully. Conflicts are very common in all marriages, but the key lies in solving such disputes for a happy family life.

Some common causes of family disputes are:

1. Money issues:

Money can be one of the reasons for conflicts in marriage, which basically represents issues regarding control, power and trust in a marriage. Such conflicts might arise when one spouse misuses the money earned by his/her partner. In the worst case scenarios, it can build trust issues between the couple.

2. Work stress:

Often, a lot of arguments between couples are related to work. Long working hours or travelling a lot due to work might result in a clash of opinions. Additionally, if both or any one of the spouses does not have a stable income or job in order to support a comfortable lifestyle, it might lead to fights and clashes.

3. Relationship with the relatives:

There are times when conflicts arise with the in-laws. Such conflicts come under one of the most sensitive areas when dealing with disputes arising in a family. Usually, strained relationships between the spouses leads to conflicts between one of the spouses with the in-laws.

4. Conflict over power:

Perceived inequity in a couple’s division of labor is often associated with marital conflict. The male usually withdraws in response to conflict, damaging the situation more and resulting in marital dissatisfaction.

5. Children:

It is believed by some scholars that children can also pose as a stress factor for the marriage. Although this view is generally contested with the belief that children bring stability to a married life, however, the pressure of managing expenses to sustain a child often lead to severe breakthroughs in a marriage.

6. Household chores:

This challenge is mostly faced by females since they are expected to follow centuries-old traditions of managing the house and taking care of the family and children alone. This poses as a challenge for working women since they are entrusted with twice the responsibilities as the man of the house and is often put in situations so as to make a choice between the career they wish to persuade and family.

7. Miscellaneous:

Marital conflicts usually tend to be based on almost everything ranging from verbal and physical abusiveness to personal characteristics and behaviors. There have been many reports of marital conflicts over a number of issues like premarital sex, substance abuse, problematic drinking, jealousy, etc. Amongst other factors, violence among newlyweds has often been seen as a predictor of divorce, as is psychological aggression.

FOUR MODELS OF RESOLVING FAMILY DISPUTES

There are several ways to resolve disputes in a family. In order to restore the relations and rule out any hard feelings, alternative methods of dispute resolution are often adopted so as to avoid the tiresome complexities of going to court. These ways have been divided into four models of resolving these disputes:

1. Simple Bilateral Negotiation

In some cases, the disputants tend to approach each other directly to avoid the interference of a third party and try to work with each other to reach a mutually acceptable outcome through bilateral decisions. A vital characteristic feature of this process is that it lets the disputing parties take control over the situation instead of surrendering entirely or in part to an outsider.

2. Supported Negotiation

The second model puts forth a different way of approaching negotiation. In this process, the disputing parties approach each other with the support of the appearance of partisans of the respective disputants. The help of an apparently neutral intervener is avoided in this process as well.

3. Mediation

This model follows a changed structure of the dispute resolving process. A third neutral intervening party is introduced, instead of the partisan, so as to ensure apparent neutrality in assisting the disputants arrive at an agreed outcome.  The third party is referred to as the ‘mediator.’

4. Umpiring

In the fourth model, the dispute is taken before a third party to resolve the dispute at hand decide the outcome. The disputants concede the decision-making power in the hands of a third party.

MEDIATION AS A TOOL OF RESOLVING FAMILY DISPUTES

Family disputes possess a unique nature and are thus best resolved through the process of mediation. Since a family dispute doesn’t solely depend on the law or facts of the case but also involves the emotions and feelings of the disputing parties. Therefore, mediation is an alternative dispute resolution method that is adopted with the objective of assisting the two disputing parties to reach an agreement which is beneficial for both of them while also serving the needs of both the disputants.

This method has been proven to be the best and most effective alternative dispute resolution strategy in cases of family and matrimonial disputes. The reason for this is that it aims on non-coercive and consensual process to resolve the dispute between the parties. This method is not only time-saving but also reduces the probability and possibilities of any bitterness, hostility and estranged relationships which might arise in case the parties decide to go for litigation. Thus, the process of mediation has been adopted extensively for resolving disputed not only in India, but also in many foreign countries like United States, Canada and England.

One specific type of mediation for helping separating parties to come to their own agreements is Family Dispute Resolution (FDR). In the course of this process the families usually discuss the issues in dispute and take into consideration different point of views and options, while being encouraged to focus on the arriving at an outcome in the best interest of their children.

Several acts and codes make references to mediation in family dispute resolution such as Section 9 of the Family Courts Act, 1984, Section 89 and Order XXXII-A of the Civil Procedure Code, 1908, Section 23 of the Hindu Marriage Act and the Legal Services Authorities Act, 1987 that recognizes and gives a special status to Lok Adalats that have been very effective in mediating family disputes.

Section 23 (2) of the Hindu Marriage Act, 1955 which contains similar provisions provides that before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavor to bring about a reconciliation between the parties. It also states that, for the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, affected and the court shall in disposing of the proceeding have due regard to the report. Here again, there is no compulsion to go for mediation before taking recourse to litigation.

CONCLUSION

Alternate dispute resolution is gradually becoming the preferred mode for settling disputes outside the court of law.

The Law Commission of India has strived to bridge the gap between the diverse personal laws prevalent in India at least in the matter of resolving disputes related to family and matrimony. The 129^th Law Commission has also suggested that the alternative dispute resolution methods must be made obligatory by the courts after the issues are framed.

The process of mediation should be preferred in cases of family disputes since the process is extremely private and the confidentiality of the whole process is maintained. This helps the parties to open up without hesitation and present their issues so as to reach a mutually acceptable outcome.

Date – 13/09/2020

 

 

Author – Ishita Singh

 

 

Year – 3rd Year

 

 

Institute –  National Law Institute University, Bhopal