Mediation: Restoring the imbalance of power in cases of Domestic Violence

Preethi Kavilikatta, Final Year Student of  Year LL.B, Symbiosis Law School, Pune

Abstract

In every case of domestic violence there are two over riding interests which should be guarded carefully- protecting the victim from further abuse and empowering the victim to take back control over her life[1]. Those opposed to Mediation, where domestic violence is present, argue that mediation legitimizes violence rather than punishing abusers, places the victim at risk for further abuse and results in unfair agreement; since the imbalance of power between the male and the female spouse is palpable in such cases.

However, commentators who support Mediation in cases involving domestic violence argue that mediation can be used in responding to domestic violence, where the traditional court system has failed in responding to domestic violence; mediation empowers participants to end violence within their relationship by serving as a model of conflict resolution; and allows them to create guidelines to govern future interaction[2].

To elaborate further on the supporting view, this commentary is an attempt to examine how Mediation in cases of domestic violence restores the imbalance of power present in such disputes. It strongly supports the idea that Mediation is a tool that empowers the female spouse in such a situation.

Introduction

It is a fact well known that in cases of matrimonial disputes; women are often the victims of humiliation, false allegations and isolation. The social stigma around such cases still persists in the Indian society- compelling the woman to believe that any rift/disagreement is a consequence of her inability to safeguard her marriage. Since matrimonial disputes are perceived as war, the parties are under pressure to prove to the Court that the other party is responsible for such breakdown and it cannot be attributed to them in the slightest of manner. Unfortunately, in most cases, the effect of such an approach is a tormenting experience for the female spouse- making her feel powerless.

 

It is said that there is always some ‘power disparity’ in the resolution of matrimonial disputes. That is to say, in most cases, the male spouse is said to have an upper hand over the female spouse. A well-known mediator once defined power as “control of, or access to emotional, economic and physical resources desired by the other person.” Such control has a lot to do with the family set-up in India, where the male spouse is regarded the head of the house and the female spouse a homemaker. The male spouse has the highest decision-making power, with control over money, assets and other household matters. Such polarised positions place the female spouse at the receiving end, giving the male spouse more power.

Furthermore, this divide widens when the matter reaches the courts, since the parties are placed in opposing positions. Our adversarial court system perpetuates rivalry which in turn proves to be of disadvantage to the female spouse at the receiving end. Other factors that that influence power-balance are: education, professional status, self-esteem, sense of guilt, victimization, attitudes of entitlement and obligation.

Many feminists believe that the female spouse in a traditional couple has less power than the male spouse. However, the question that needs to be examined is whether the power remains unchanged in a mediation process.

Mediation and imbalance of power:

Most commonly accepted definition of Mediation by Folberg and Taylor (1984) stressed that mediation is a ‘self- empowering process.’Mediation is a voluntary process, in which the neutral third party assists the parties in dispute to resolve their matters creatively[3]. The Mediator uses specialised communication skills and negotiation techniques to facilitate disputing parties, bridge their differences and find their own mutually acceptable solution.

Since it is a voluntary, flexible and party-driven process; it helps the female-spouse to exert control in cases of Matrimonial Disputes in the following manner:

  1. Awareness of power: Mediation as an alternative dispute resolution mechanism makes aware to the female spouse of her power to voluntarily negotiate through a process that gives her an equal opportunity as her male counterpart. She will be placed on an equal footing as the other spouse before an impartial mediator, which will grant her a ‘bargaining position’ to determine what outcomes she desires, and what she doesn’t.
  2. Confidentiality:One of the essential features of the mediation process being confidentiality, the processoperates in an atmosphere of freedom and openness, eliminating fear in the mind of the female spouse. Confidentiality empowers her with fearless communication since nothing can be subsequently disclosed to the Court; disallowing the male spouse to turn the tables against her or take undue advantage of the situation.
  3. Privacy: Typically, the court proceedings in India are public in nature. All communications, pleadings and submissions are done in public. The adversarial nature of our court system brings in a sense of rivalry among the parties in dispute- which encourages the use of malicious tactics to negate the claims sought. This often proves to be of detriment to the female spouse, who is constantly subjected to baseless allegations on her character, ability and credibility. Such a lack of privacy for the fear of humiliation often places the female spouse in a lower pedestal. A situation as this can be avoided through mediation, which is conducted in a private setting.Such a setting could be of advantage to her, since access by a third party is limited in the light of her interests.
  4. Impartial Mediator: Mediation process is assisted by an impartial mediator to whom the parties submit their grievances and creatively resolve their disputes. The mediator is an impartial third party who plays a key role in maintaining the balance of power in matrimonial disputes. The mediator by deciding who may speak at what time, allowing and timing party’s response, presenting an interpretation of what the spouse has to say; keeps things in check as opposed to a Judge in conventional litigation who doesn’t perform such a function. The mediator uses multiple techniques to strike the balance.
  5. Catering to the emotional needs of the female spouse: The ‘human element’ in matrimonial disputes makes it highly emotional and stressful in nature. This is often overlooked in conventional litigation, since the duty of the Court is to only look into the matter of facts and law.Marriage for a female spouse is of much more emotional value than her male counterpart. The opportunity to communicate her emotional needs to mediator is an effective catharsis to the female spouse, making her mentally stronger for the fact that she is given a voice through the process. This fuels power to her position, as it could be used to address behavioural issues and resolve the matter in hand.
  6. Quick and cost-effective:The longevity of a mediation process is quite short as compared to a to a court proceeding, which is tedious and time-consuming. In cases where the female spouse is desperate to disassociate from the marriage, such a quick process can liberate her from the shackles of the same. Since money is one of the criterion to evaluate power, it puts most women at a disadvantaged position. However, the mediation process is to their advantage a less costly procedure as compared to the money invested in the lengthy and tiresome court proceeding.
  7. Flexibility:The Mediation process is flexible and controlled in which the parties determine the course of the entire process. It can be conducted at any stage of a dispute. In a mediation process, convenience of the female spouse is taken into consideration. Friends and family members are allowed to the mediation sessions for support. The mediation session can also be terminated by the female spouse as per her discretion. Since the process is party-driven, it allows the female spouse to be at the helm of the process.
  8. Settlement:One of the unique features of Mediation as a dispute resolution process is the ability to create tailor-made settlements. The parties to this process can through dialogue create their own agreements in conformity with law and resolve the matter at hand. Unlike the dictum of the Court, which is an exercised discretion of a Judge, Mediation provides an opportunity to the female spouse to get the outcome she desires.
  9. Finality: The settlement can begiven finality and made enforceable by acquiring a court mandate. The female spouse doesn’t have to worry about being cheated by the male spouse after they have come to an agreement. If at all such a situation arises, the male spouse will be subject to action by the Court of Law.

How the Courts have encouraged Mediation in cases of Domestic Violence:

In the case of Smt. Padmavathi vs. Sri M. Suresh Ballal[4] it was emphasized that “Matrimonial issues must be considered by Courts with human angle and sensitivity. Delicate issues affecting conjugal rights have to be handled carefully.”

Justice Katju opined that “the lawyers should advise their clients to try for mediation for resolving the disputes, especially where relationships like family relationships, business relationships are involved[5].”

A formal recognition to ‘mediation’ as an effective method of alternative dispute resolution in matrimonial matters has been given by the Supreme Court in the case of K.Srinivas Rao v. D. A Deepa[6]. The Court mentioned that “In matrimonial disputes there is hardly any case where one spouse is entirely at fault. Before the dispute assumes alarming proportions, someone must make efforts to make parties see reason.”

The Supreme Court, in this matter, touched upon mediation in cases of domestic violence and opined that although it is a criminal offence, where it appears to the criminal court that there existelements of settlement; the parties should be directed to explore the possibility of settlement through mediation. The Court emphasized that this attempt is not to dilute the rigour, efficacy and purport of the Indian Penal Code, but to locate cases where the matrimonial dispute can be nipped in the bud in an equitable manner.

In the case of Jaya Sagade v. State of Maharashtra[7], a circular issued by the State of Maharashtra dated 24th July, 2014 was challenged. The circular prevented parties to a domestic dispute to resort to counselling/mediation before approaching the Court. The Court quashed the circular on the grounds of it being discriminatory, arbitrary and unreasonable.

It was declared that any woman who has suffered any form of domestic violence as defined in Domestic Violence Act, and who accessed the services of any service provider provided thereunder including NGOs, counsellors or the Police may be counselled with regard to the course of action which she can take including joint counselling/mediation with her spouse/husband or her family members/in-laws subject to the following directions:

  • That a violated woman must be informed of her right to choose of a future course of action.
  • That there shall be no pressure upon her to settle her claim or grievance. The joint counselling/mediation shall be commenced only upon voluntary, informed consent of the aggrieved woman.
  • That the service providers, including the Police, NGOs and counsellors shall prominently display in their office the fact that the aggrieved woman who has accessed their service shall have the choice of future course of action and that any joint counselling/ mediation with her spouse/husband or her family-members/in-laws shall only be done with her consent.
  • That no joint session/Mediation shall be undertaken in a case of serious physical domestic.
  • That upon the parties entering into a settlement an “Assurance Paper” or “Terms of Settlement” may be entered into and executed by the Parties.

Conclusion

Ann Yellot, an experienced mediator expressed her opinion that one should not deny these women of an opportunity to participate in a process which can empower them to reclaim what they have lost. She writes, “When women express desire to meet with her abusive partner… it seems disempowering to categorically refuse to afford them that option under the guise of protecting them.[8]

Hence, Mediation, can be considered suitable for cases of domestic abuse for the following reasons[9]:

  1. Mediation focuses on the future than on past behaviour, which could empower couples to take responsibility for their past and rise above it by setting boundaries for future behaviours
  2. The Mediator can customize the process to serve the best interests of the parties.
  3. Mediation can provide for positive interaction among the disputing parties. This in turn, can also serve as a model for effective communication and bring in changes to the behavioural pattern which in turn decreases the risk of future violence.
  4. Mediation can provide a supportive, empowering environment for women who in many cases have been stripped of their identity, dignity and self-esteem.

[1]Commentary on Mediation and Domestic Violence: Legislative Responses, 14 J. Am. Acad. Matrimonial Law. 447 1997

[2] ibid

[3]The Centre for Advanced Mediation Practice, Understanding Mediation: What is Mediation?, Campmediation, (December 30,2016, 9.00 p.m), http://campmediation.in/understanding-mediation

[4] ILR 2012 KAR 3926

[5] B.S Krishnamurthy vs. B.S Nagaraj, AIR 2011 SC 794

[6] (2013) 5 SCC 226

[7]2015 (5) Bom CR 633

[8] Ann W Yellot, Mediation and Domestic Violence: A Call for Collaboration, Q. 39, 45 (1990)

[9]Supra, Commentary on Mediation and Domestic Violence: Legislative Responses, 14 J. Am. Acad. Matrimonial Law. 447 1997

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