The Ways of Mediation In Matrimonial Disputes
Discourage Litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often really a loser - in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity at being a good man. There will still be business enough. ~ Abraham Lincoln, 1850
Long years ago, Abraham Lincoln has said in the above words. How a lawyer can be effective in dealing with the mediation. The above words had taken form in the present scenario in the form of mediation.
Mediation is the effective alternative remedy since it focuses on the non-coercive and consensual process. This method of dispute resolution not only save time but also diminish the acrimony and estranged relationships resulting from litigation. Mediation is prevalent today in the United States and in foreign countries, including Canada and England.
Mediation is especially helpful in family disputes because of the unique nature of family law. Family matters involve not only the law and facts, but also feelings. An increase in the number of divorces and of children born outside marriage has caused states to seek methods other than litigation to solve family disputes involving child visitation, as well as financial matters. Mediation is one such method.
What is Mediation:-
Mediation, is a form of alternative dispute resolution (ADR), aims to assist two (or more) disputants in reaching an agreement. Whether an agreement results or not, and whatever the content of that agreement, if any, the parties themselves determine â€” rather than accepting something imposed by a third party. Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial.
The traditional understanding of mediation that focuses on its relational aspects is expressed in Professor Lon Fuller’s description of mediation’s “Capacity to reorient the parties towards each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.” Mediation, like equity, was conceived of as justice without law.
The another definition of Mediation is the process in which a neutral third party, the mediator, facilitates negotiations between the disputants and assists them to explore each other’s point of view, enabling thereby a settlement of the dispute. The mediator merely acts as a facilitator or a catalyst and neither participates in the negotiation process, nor throws out suggestions for settlement of the dispute. His role is limited to enabling the disputing parties to openly articulate their grievances in his presence so that they may recognise the areas of difference clearly and narrow it to acceptable limits. The mediator must of course elicit the facts from the contending parties and reformulate them succinctly so that the parties can focus on the really troublesome areas. Mediation gives an opportunity for creative solutions that may not be possible in a third party imposed legal solution. The mediator can confabulate with contending parties individually or in each other’s presence, to make them see the areas of disagreement and agreement clearly. It is called ‘shuttle diplomacy’, since the mediator acts merely as a shuttle or sounding board for the parties to articulate their respective concerns and also confide the bottom line to the mediator in private. This enables the mediator to isolate and identify the areas of real dispute from areas of ego-driven scoring, or sparring for effect. The private and open discussion of conflicting issues enables discovery of face saving devices to the parties to put an end to what otherwise seemed an impasse.
Mediation in the context of matrimonial dispute is different in its form and content from that in the context of commercial and property disputes. The matrimonial disputes are distinct from other types of disputes on account of presence of certain factors which are not obtained in other disputes. These factors are motivation, sentiments, social compulsions, personal liabilities and responsibilities of the parties, the views of the two parties regarding life in general and to the institution of marriage in particular, the security for the future life, so on and so forth. Talking in terms of the mediation for matrimonial disputes one must remember that the factors that weigh the decisions of the parties are not controlled simply by rational factors. Very often irrational and emotional factors also have dominant roles in creation of the dispute as well as in their settlement. In the context of matrimonial disputes the mediator cannot merely concentrate on the monetary or mundane aspects and overlook the emotional aspect. In fact he is concerned with happiness of the parties which is more a matter of sentiment than of reason. Further his/her objective is to discover a solution with no damage or minimum damage to the parties. He cannot simply go a between the two sides telling him how the other party may take suggestions for a solution.
The mediator has to prepare the two parties to look for a solution. Very often the parties more than looking for a solution look for their ways and means to wreck vengeance on the other party. The mediator here has to mould himself or herself into a counsellor and a conciliator to lead the parties for an amicably acceptable solution that brings about lasting peace. The mediator may have to give advice to the two parties and may also have to coax them in order to make them see acceptability of a proposed solution. The proposal for the solution may come from either party or the mediator himself. The job of the mediator would be to continuously bridge the gaps in the proposals to arrive at consensus.
Problems In Matrimonial Disputes:-
In matrimonial disputes, what are the real problems that confront a divorcing couple? Begin with the definition of divorce. Black's Law Dictionary defines divorce as "the legal separation of man and wife." The New Brittanica - Webster Dictionary defines divorce as "a complete legal dissolution of a marriage." Interestingly, however, marriage has a much broader definition. Brittanica - Webster defines marriage as "the institution whereby a man and a woman are joined in a special social and legal relationship for the purpose of making a home and raising a family."
Thus, it is interesting to see that marriage is viewed as a legal and social union of two people; however, divorce is merely viewed as the legal termination of said marriage. These definitions in and of themselves highlight one of the basic problems that occur when a couple chooses to divorce. Namely, although the legal system is equipped to deal with the legal problems that the couple faces when divorcing, it does not address nor is it equipped to deal with the social and emotional issues that confront the couple.
Once the emotional or social issues are dealt with, it makes the resolution of the legal issues that much easier. Taking it a step further, what most people really are arguing about is not legal or financial issues, but rather arguments fueled by their desire to get some form of revenge for a perceived wrong by the other spouse.
Once each of the participants is helped and supported to resolve the emotional and social issues, however, they are in a much better position to deal effectively with the legal and financial issues.
Ways of Dealing with Mediation:-
Mediation may need more than one mediator to help them arrive at a mutually acceptable agreement. Different people have different needs. One's emotional or social issues are best handled by mental health mediators such as psychiatrists, psychologists or social workers. Financial issues are best dealt with by specially trained mediators such as accountants, financial planners and possibly lawyers. Legal issues are best dealt with by attorney-mediators.
This "mediation team approach" effectively enables a couple to have what might be called a successful or positive divorce. Whatever particular problem or issue needs resolving by the couple can be worked on by the expert-mediator most particularly suited to that type of problem.
However, if the couple resolves the often unresolved emotional or social issues, then they may have a united interest; namely, that they terminate their marriage legally, fairly and in a way such that each of the participants and everyone else in the family and society wins.
Win/Win agreements are possible especially where each of the participants is interested in arriving at a win/win solution as opposed to a "you or me" solution.
In the area of conflict resolution, it can be said that there are three levels of relationship in which people can operate: "you or me," "you and me," and "we."
In the "you or me" domain, each of the participants is looking for what is best for them, without regard to what the other wants or needs; namely, a win/lose situation.
In the "you and me" way of relating, each of the people is interested in going their separate ways, but each is also interested in the other's winning as well.
In the "we" domain, the couple would be going in the same direction with a unified effort. Mediation can take place where the couple learns how to solve problems in a "you and me" or "we" frame of mind. This method of problem solving can be taught to the couple by the mediator.
Once a couple receives the proper guidance from a trained mediator, shifts in the way each participant relates to the other and to the divorce as a whole, occurs. With the appropriate mediator's help, the couple would be able to come up with various win/win alternatives so that an agreement can be arrived at which benefits everyone.
Contrast this with the "you or me" approach in which each person would seek what is best for them and would seek to minimize what the other person gets. This is typical of the adversarial context where each party hires a separate attorney whose role is to get as much for his/her client as possible - often at the expense of the other spouse.
For those who share the school of thought that an attorney is always necessary for each party, mediation can still be a beneficial process. Indeed, the couple can agree to mediate, with or without attorneys present at the mediation sessions, and the process can continue until an agreement is reached; this agreement can then be finalized by the separate attorneys.
At every stage of this mediation proceeding, each party can be advised by their respective attorneys of their rights and the ramifications of each decision. In this way, the adversarial nature of the litigation process can be avoided, and the client can be "represented" by separate attorneys at every step.
This model may be the best, the clients are moving forward in as amicable a way as possible, and their "conflicting interests" (if any) are being carefully monitored by their respective attorneys.
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