There are no 'winners' or 'losers' in mediation

Mediation is like give-and-takewhere both the litigants feel they have won. Photo: Bhagya Prakash K.  


Sitting side-by-side in a room, quietly signing papers, one would hardly believe that Roshan and Sarika, had three years ago, prepared themselves for a bitter court battle for divorce and over custody of their daughter.

Mediation, they said, had effected the transformation for the couple — from talking to each other only through advocates in the forbidding confines of a courtroom to an amicable separation.

After they filed two cases in 2009 and 2010 for divorce, the courts had referred them to mediation. In both sessions, Roshan asked for reconciliation and Sarika agreed to continue the marriage. However, “irreconcilable differences” remained unresolved, and last year, both filed for divorce. Custody of their two-year-old daughter remained a thorny issue, one that could have potentially forced the child to choose between the parents in court.

Again, the court referred the matter to mediation, and after much discussion, the final custody agreement was drawn up. Calling the agreement the one they had “authored”, both Sarika and Roshan have something to smile about. Unlike a court judgment, where one “wins” and the other “loses”, in the agreement drawn through mediation, both feel that they had “won”.

“There are terms in the agreement which I would not have got in court. I can now see the child once a week, apart from special occasions such as birthdays and the possibility of going for a holiday with the child,” said Roshan. Not having to pay alimony or maintenance, Roshan said mediation was like a give-and-take policy. “She had to sacrifice financially, and I had to sacrifice time with the child,” he said.

Reuniting a family

For Rahman and his family, mediation has seen sparring brothers sit on the same table for the first time in more than a decade. Locked in litigation over ancestral property, the case was fought out in courts for 10 years before it was referred to mediation.

“It was dragging on in the High Court, where we heard one accusation after another by the opposing counsel. Court was a painful process, and there was so much bad blood that the brothers didn't talk to each other for a long time,” said Rahman.

He felt interacting with each other in the mediation room, where each side negotiates and states their points directly without reeling out sections of the law, has given hope of an amicable resolution. “I feel certain that in less than two months all this will be over,” said Ahmed, Rehman's brother.

Beyond family issues

As the case filed by a Bharat Electronic Ltd. (BEL) employee against the company management shows, the efficacy of mediation extends beyond family matters. The dispute over wages had languished in courts for over 10 years.

When the matter reached the Supreme Court, the case was referred to the Bangalore Mediation Centre. After parleys and deliberations, the issue was resolved in January this year with BEL consenting to pay a negotiated amount to the employee.


However, the process of resolution does depend entirely on the willingness of litigants to compromise. In an eight-year-old divorce dispute between Reema and Sukwinder, the unwillingness of the wife's family to accept anything less than Rs. 20 lakh as settlement and the refusal of the husband to pay beyond Rs. 5 lakh, has elevated the case to a dowry harassment charge. The matter reached bitter proportions, and had to be handed back to court after mediation failed.

(All names have been changed)

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Printable version | Feb 19, 2017 11:21:25 AM |