Amicable Alternative

Disputes in family property cases involve sentiments and emotions. These disputes are essentially matters of both the heart and law. Therefore, the best possible solution is mediation, as it preserves relationships. In fact, even in cases where emotions have no place, time is still involved. At times, in family property and financial disputes, generations change, but the disputes do not end.

Such litigation can lead to forced partitions, the risk of losing the entire case, and strained relationships. Further, court cases generally drag on for a couple of years. Mediation is thus an ideal solution for family property disputes as it is both cost- and time-effective. While attachment and sentiments toward property exist, they also apply to relationships, especially close ones. By promoting cooperative problem-solving, mediation helps preserve relationships that might otherwise be damaged by adversarial legal proceedings. Additionally, mediation offers the advantage of confidentiality—unlike court proceedings, it is a private process. Importantly, parties have more control over the outcome, as they work together to find a solution with the mediator, unlike a court order, which must either be accepted or challenged.

Many times, property disputes may become irrelevant over time or remain mere ego issues. Properties remain unused, people pass away, yet disputes remain unresolved. In fact, in certain cases, an entire lifetime is wasted, along with financial resources. Quality of life may deteriorate. Mediation in such disputes is an effective path to resolution, offering an amicable, economical, and flexible alternative to court battles. By understanding and utilising this process, disputing parties can resolve their conflicts more efficiently and reach mutually beneficial agreements while maintaining relationships.

Mediation involves disputing parties collaboratively working with a neutral third party, known as a “mediator,” to identify and address disputes, aiming for a mutually agreeable resolution. The mediator assists rather than imposes solutions. There must be mandatory consensus between both parties, and the agreement must fall within the parameters of the law. Mediation, once seen merely as an alternative, has now become an integral part of the dispute resolution system. The key to successful mediation lies in open communication and, most importantly, the guidance of an experienced, trained, and skilled mediator. The mediator facilitates discussions between parties, helping them see the other person’s perspective and encouraging them to find common ground.

The high financial cost of litigation is one of the downsides of a family lawsuit. Apart from this, information may become publicly available. The glare of publicity often makes compromise more difficult. Courts are limited in their remedies. Overall, litigation in such disputes rarely heals differences or promotes understanding.

The concept of mediation in India is age-old. It began with village panchayats and later received legislative recognition under the Industrial Disputes Act, 1947. Detailed procedures are prescribed for conciliation proceedings under this statute. According to Section 9 of the Family Courts Act, 1984, parties go through a mediation proceeding. The Arbitration and Conciliation Act, 1996, also contains relevant provisions. In 1999, Parliament passed the CPC Amendment Act, inserting Section 89 into the Code of Civil Procedure, 1908, with the aim of facilitating amicable, peaceful, and mutual settlements between parties. Now, we also have The Mediation Act, 2023, which is a game changer and a boon for litigation. In line with the standard of disclosure adopted under the United Nations Commission on International Trade Law (UNCITRAL) Model Laws, our legislature has included provisions clearly indicating that the mediator has no favourites.

A family, whether by blood or otherwise, is essentially an informal institution where members stand by each other in times of need. Property disputes can destroy relationships for a long time. A judicial decision or legal mandate may not always address underlying emotional concerns. The desire to resolve disputes and preserve family relationships is deeply embedded in the human heart. Family disputes are increasing, leaving people feeling lonesome and separated. The effects of these conflicts carry over to future generations, creating animosity. Therefore, there is a need to actively encourage mediation in such disputes to prevent families from breaking apart.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal