Author: Abhiranjan Sinha, Adamas University, Kolkata

As we know in today’s modern world family law disputes like divorce, child custody, maintenance and property division cases are increasing day by day which is building a lot of pressure on the courts. The traditional approach to litigation of these disputes is generally costly, time consuming and it also leads to emotional draining of individuals. Mediation is a type of ADR mechanism which gives an alternative way to resolve the dispute peacefully. The basic aim of this article is that we will get to know about mediation and the success rate of mediation in family law disputes. This paper, with the help of literature review, empirical studies and case laws , analyses that mediation not only reduces the burden from our legal system but also emotionally offers a better resolution of family law disputes. In India mediation is still underutilized and it needs many systematic reforms to make it more accessible and trusted among the people.

Key Words 

Legal Reforms, ADR, family Law, Mediation, Divorce, Custody 

Background

Family law disputes are arising all over the world. In India where family relations are given so much importance, as a result it becomes more complex in India. The cases of family law dispute include divorce, child custody, maintenance and domestic violence, the litigation process becomes a traumatic process for these parties. Mediation comes into play in these cases where a neutral third-party mediator helps both parties to reach an amicable solution. As today's society is getting urbanized, family disputes are more complex than earlier. Conflicts between couples are increasing day by day due to factors such as financial independence, career aspirations and social mobility. However along with that they want to be separated without courtroom stress and public exposure, basically they want to maintain dignity during separation also. In these situations, mediation can be a relevant and necessary tool, which addresses legal as well as emotional needs. 

Is mediation can be a sustainable alternative in family law disputes.? Also, can it be better from the traditional legal process which is by resolving the dispute with the help of litigation.

The main aim of this research is to understand the role of mediation and the success rate of mediation in resolving family law disputes. 

The specific objective includes:

1. To identify the challenge and systematic barriers of mediation.

2. To understand the mediation process and evaluate the legal position of mediation. 

3. To assess the effectiveness of mediation on basis of existing data and case laws 

4. To provide some reforms and suggestions.

If mediation will be promoted in systematic manner and at institutional level then mediation can become the most effective resolution method in family law disputes. 

This research is relevant because it is a contemporary issue which is not only related to legal perspective but it is also related to emotional and social dimensions of a person. Mediation will not only preserve relations of family but it may also protect the interest of the person who will be affected by the family law dispute. In cases of divorce, when the topic of child custody arises it affects children also, so mediation protects the interest of children without going through a courtroom trauma. 

In India the mediation system was formalized after the Supreme court MCPC initiative. The mediation and conciliation project committee [MCPC] reports from 2017 to 2022 identify that more than 60% of disputes have been settled by mediation, especially in mutual divorce and custody related matters.

Shruti Vidyasagar in her NUJS Law review wrote that Women litigants considered mediation a ‘safe space’ especially in cases of separation or cases where emotional trauma is involved. 

Prof. N.R. Madhava Menon has said that mediation was a restorative justice process where litigants solve their problem not only the case. He also said that in family law disputes mediation helps to maintain a mutual respect between the parties. 

S. Sivakumar of National Law School of India University in his research  said that mediation can reduce the backlog of cases in family courts but lack of trained mediators and institutional support is a major obstacle. 

In UN Women India [2020] reports it is given that sometimes mediation can be coercive in nature, especially in patriarchal families where pressure is always given to compromise.

This concept of mediation is new in India. Gram panchayats have always become informal ways of resolution where family matters are being solved by mutual dialogue and respect. Formal legal mediation is a modern extension of the traditional model. Scholars believed that India has a diverse culture-based society and therefore adoption of mediation will become easier only if mediation will be adopted in proper systematic manner.

Legal Context

Mediation and conciliation Rules, framed Under Section 89 Of the CPC 

• Indian courts can refer a case to mediation under section 89, Civil Procedure Code, 1908. According to this section the court can suggest parties to solve their dispute by mediation, arbitration or conciliation. 

Gap identified 

In cases of family dispute in rural families, mediation adoption research in such cases is not present.

Long term satisfaction or compliance after mediation, there are limited studies on these topics.

Research Design 

• A qualitative Doctrinal method has been used and for empirical support [ MCPC, academic journals] have been analysed. 

Subjects 

• Delhi, Bengaluru, Mumbai, and Hyderabad mediation centres data have been studied from 2018 to 2023

Data collection Tools

• NUJS & NLSIU publications 

• Supreme Court MCPC Reports [ 2017-2022]

• Manupatra and SCC online case laws 

Analysis Technique 

• Case law analysis along with interpretation of comparative statistics

Ethical Considerations 

• Only the data which are publicly available have been used, no personal identifiers have been used in the article.

Findings 

• In Delhi and Bengaluru mediation centres up to 65% cases have been resolved through mediation

• In cases of divorce and child custody matters success rate is high [ around 60%]

• In cases of maintenance and property disputes this rate was relatively low [ around 42 – 50 %]

• In repeated or recurring legal cases involving the same parties and issues of family disputes parties focus more on mediation. 

1. K Srinivas Rao V.s D.A. Deepa [2013] 5 SCC 226

2. The Supreme Court observed that in matrimonial cases mediation should be given priority over litigation. Parties should try mediation first and if the issue is not resolved parties can start litigation.

3. Afcons Infrastructure Ltd V.s Cherian Varkey Constructions [2010] 8 SCC 24

4. The court kept family disputes in the “pre suited for mediation” category. 

5. Shalu Ojha Vs Prasant Ojha, AIR 2020 Del 45 

6. This was a child custody case which was settled by mediation and the court has endorsed the solution. 

Research findings clearly stated that mediation is becoming an effective measure in family law disputes, particularly in cases where emotional stress and long-term relationship are involved like child custody, maintenance and mutual divorce. With the help of mediation parties get a chance to understand each other's perspective which is not possible in a courtroom setup.

Confidentiality and flexibility principles make mediation become more effective. When parties feel   empowered to solve their dispute then the dispute resolution mechanism is not only limited to legal perspective but also becomes social and emotional too. This aspect is especially important in the Indian context where family honour and societal perception are considered as the most important factors.

Court orders are inclining more to mediation; in case of K. Srinivas Rao V D.A. Deepa the supreme court of India suggests that in matrimonial disputes parties should try mediation first to prevent unnecessary breakdown of families.

Comparison With International Perspective 

If we compare India with other developed countries [UK, US or Australia], in these developed countries mediation has already become a central mechanism especially in family law cases. 

For Example:

Uk: According to Family Law Act 1996 UK mediation information and assessment meeting [MIAM] is compulsory before litigation.

US: In US, States like California and Florida, family courts have a well-defined mediation program with a proven track record of resolution of disputes.

Australia – In Australia FDR [ Family dispute Resolution] is a statutory requirement before applying for parenting Order under the family Law act 1975. 

In all these countries mediation is not only pre- requisite but also it is publicly funded and legally recognized. In India mediation act 2023 has been enacted but full implementation and awareness about the act is still left. 

Socio -Legal Implications in Indian Context 

In India family structure is both joint and patriarchal where outcomes of family disputes are not only limited to husband and wife but it involves children, in-laws, and all the members of the family. In this type of environment mediation provides a forum where holistic resolution is possible. 

As we know that the nature of mediation is informal and voluntary which provides a safe and non – judgmental environment. Especially for women litigants this nature empowered them where they can talk about their rights without fear. In NUJS study it was found that women's voices were more heard in mediation centres rather than courts. 

But we have to understand that mediation is not equally safe for everyone. UN Women [2020] reports warn about patriarchal pressure. Patriarchal pressure sometimes makes mediation coercive where women have been mentally pressurizing to compromise. 

Therefore, neutrality of mediators and informed consent are essential components of Mediation. Mediators must go through a training process related to gender-sensitivity and trauma awareness. 

Challenges and systematic barriers –

Despite the positive trend, there are many challenges which hinder the widespread adoption of mediation:

1. Mediators are not well trained – Most district courts lack trained mediators. Without these trained mediators, mediation only becomes a formal process without a meaningful resolution.

2. Public Awareness is still less – There are many parties who do not know about mediation and benefits of mediation. Legal aid lawyers do not suggest mediation due to lack of training 

3. Institutional Gaps – Lack of staff in mediation centres. Many mediation centres are not properly funded. In rural and semi urban areas these situations are worse. 

4. Lack Of Legal Enforcement – Mediation agreement will become legally binding only when court will approve it, this process is time taking and many complications arise before approving. 

Practical benefits Of Mediation 

When mediation is conducted properly, then it has multiple benefits 

1. It saves the time – Mediation proceedings can be concluded in 2or 3 weeks, compared to years of long court proceedings 

2. Cost Efficiency – It can reduce the cost compared to litigation, Lawyer’s fee, court fee and repeated appearance cost can be avoided.

3. Privacy – Instead of discussing Family issues publicly, mediation helps to protect the confidentiality of the issue while resolving it 

4. Long term compliance - Studies show that mediation settlements have more compliance rate than litigation orders, as parties have themselves reached the resolution. 

Policy and Legal Implications 

1. Mediation Act 2023: This new legislation has introduced a formal framework for mediation, but still there is a need for adaptation of clear procedure for family law disputes.

2. Mediation Must be integrated with family courts: Instead of making mediation a side mechanism it should be a main mechanism in the legal system. 

3. Pre litigation Mediation Mandate – Just like in civil and commercial cases, in family law matters pre litigation should be mandatory, but there must be exceptions in cases involving domestic violence or abuse. 

Consent Vs Compromise 

A final concern is that sometimes mediation is misunderstood as a tool for reconciliation. This is dangerous especially when there is domestic abuse involved. This the duty of courts and mediators to ensure that mediation will only be conducted when both parties have given their consent to it without being pressurized. Consent must never be equated with social obligation.

At last we can say that mediation the real success of mediation is not only to solve disputes , but also to preserve dignity , reduce trauma and promote long term communication. 

Summary of Findings 

This research clearly shows that mediation is evolving as an effective, empathetic and time efficient mechanism. As we have understood that Mediation helps parties to settle the dispute outside the court where with legal resolution of dispute, emotional closure is also possible. 

With the help of MCPC reports and empirical data it is established that when parties willingly adopt mediation then their satisfaction level and compliance rate is higher as compared to court-imposed judgments. There is a simple reason behind this as mediation gives agency to design their own agreement, unlike litigation where decision is in the court’s hand. 

Case laws show that the Indian judiciary, particularly the Supreme Court, promotes mediation as a first resort. But it doesn’t mean that mediation is the perfect model, there are a lot of implementation challenges, lack of awareness and shortage of trained mediators are creating problems in adapting this legal mechanism, especially for rural and low-income litigants. 

Critical Reflections 

Adoption of mediation in Indian family law is an indicator of social shift. Earlier the disputes are being suppressed in the name of “honour” and “reputation”, now mediation gives a chance to openly negotiate with dignity and mutual understanding.

We have to understand that mediation is not suitable for all cases. Domestic violence or cases where there is power imbalance, mediation can be harmful if there are no proper safeguards. Therefore, mediators training, gender-sensitivity modules and trauma informed approaches are essential. 

Recommendations 

• Mediation should be mandatory at pre pre-litigation stage in family courts except in certain circumstances. 

• There should be a specialized family law training program for mediators. 

• Mediation programs must be conducted in legal aid clinics. 

• There should be rural dispute resolution centres established in rural areas.

• Develop a post mediation follow up system which will help in indicating that settlement is suitable for long term or not.

• Develop a safe mediation environment and special guidelines for women litigants, this will help in ensuring that mediation does not become a coercion tool against them. 

Future Research 

1. What is the impact of mediation in small towns and villages, empirical research on this is missing.

2. How many parties are satisfied with their agreement and does it help in maintaining the long-term peace?

3. For understanding about the emotional well-being of children, there should be child focused studies.

4. The impact of new legislation at ground level is still left. 

1. Afcons Infrastructure Ltd. v. Cherian Varkey Constructions, (2010) 8 SCC 24.

2. K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226.

3. Mediation and Conciliation Project Committee, Annual Reports (2017–2022).

4. Menon, N.R. Madhava, Restorative Justice in Indian Legal System (2011).

5. Ojha, Shalu v. Prashant Ojha, AIR 2020 Del 45.

6. Sivakumar, S., Institutionalizing Mediation in India, NLSIU ADR CENTRE REPORT (2019).

7. UN Women, Gender and Mediation in South Asia, REPORT (2020), https://asiapacific.unwomen.org/sites/default/files/2022-08/UNW_Annual-Report-2022_FA-r18x.pdf (last visited June 4, 2025).

8. Vidyasagar, Shruti, Women’s Experience in Mediation in India, 7 NUJS L. REV. 102 (2015).