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Mediation is an alternate dispute redressal technique which is less costly and easier than litigation. It is a process in which settlement is reached by the parties with the help of a third party called the mediator. Mediator is a neutral person who hears both the parties, patiently and help them reach a settlement. It is a voluntary process which means that any of the parties can decide not to participate in the proceedings at any stage. The mediator does not act like a judge but facilitates the parties in reaching a resolution.
Why opt for Mediation?
Mediation is a flexible process while litigation is a cumbersome process. Mediation is comparatively cheaper and has less turnaround time. It is a party driven process and hence is a bit adjustable than the court. The mediation process is not bound by the Code of Civil Procedure and hence has a personalized touch. The mediator aids the parties in reaching a settlement.
Benefits of Mediation include-
- Flexible process not bound by the stringent procedure of the court
- Less costly than litigation
- Less time consuming
- Voluntary in nature
- In camera-proceedings so privacy is maintained
- Mediator is a neutral third party, so, no biasness
- Parties can be represented by the lawyers. This ensures that the arguments that are put forward are in their best-interest.
- Suitable for marriage and divorce related issues
- Parties together reach a settlement.
- Mediation proceedings have a potential to restitute marital chords in between the parties.
Types of Mediation
Mediation through Court
In some cases, the court refers the case for alternate dispute redressal mechanism. The court refers the case for mediation if it feels that there lies potential for settlement outside the court. These proceedings are called court referred mediation.
Private mediation
In this case, the parties voluntarily decide to amicably resolve their dispute with the help of a neutral third party. The neutral third party is an experienced mediator who can help in resolution of disputes.
Do We Need Lawyers for Divorce Mediation?
Mediation is an about of the court settlement which is a party driven process. In this process, parties resolve their disputes without getting into the formalities of the court. The process can either be court initiated or one that the parties opt for themselves. Even though the mediation procedure is flexible in nature but still, there exists some procedure, which the parties must cater to. This procedure is simpler than the court procedure. In most of the cases, the parties are not aware of the arguments and facts in their interest. In such cases, the parties must take the help of a professional divorce lawyer who can put forward the claims which are in the interest of the client. The need for hiring a lawyer for divorce mediation can be highlighted with the help of these points-
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Case Preparation and Client Participation-
A lawyer can help the client in understanding the case, the factors that are in the benefits of the client and the arguments that can be advanced in a given case. He can either represent the client before the mediator or else train the client to put forward his own case before the mediator. The client must use the open sessions wisely. The clients must repose their trust on the advocates and give him complete details which will help in better resolution of the case.
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Explaining the Rules and procedure of Mediation-
A family lawyer can help the client in getting acquainted with the rules and proceedings of the mediation. Mediation, even though is flexible in nature and is a party driven process, but still it has certain rules and regulations which must be adhered to.
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Arguing before the Mediator-
The divorce lawyer can help the client in understanding his best interest and put forward such claims which will support its case. Sometimes, it gets difficult for the client to understand the legalities behind a certain claim. In this case, the lawyer can help him in understanding his interest.
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Dealing with Attached issues like child custody, alimony, etc.-
Divorce not only leads to dissolution of marriage but it also has certain allied issued which needs to be decided with the divorce claims. These issues include- child custody, alimony, property distribution, child maintenance, etc. A divorce can help the client in arguing for these issues and help him reach a favourable settlement.
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Negotiate on the behalf of client-
In case the party is not able to independently out forward its claims, the divorce lawyer can represent such party in the mediation proceedings. The lawyer will not only put forward suitable arguments but through his negotiation techniques and experience, will help in reaching an amicable settlement.
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Reach a Settlement for Financial Issues-
If financial issues are not decided at the time of divorce mediation, they might lead to litigation at a later stage. This will defeat the purpose of mediation. It is advisable to discuss the financial issues with your lawyer, so that you can reach a settlement on these during the mediation proceedings.
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Reaching a Settlement-
Mediation ends up in being a win -win situation for both the parties, if they are able to reach an amicable and favourable settlement together. So, the aim of the divorce lawyer is to reach a settlement without jeopardising your claims. It aims at meeting your best interest at hand.
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Documentation-
The settlement reached by both the parties must be duly drafted and signed to avoid future litigation. The decided terms can be incorporated and verified by the divorce lawyer so that the other party cannot refuse accepting them at a later stage.
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Execution of award-
In order to avoid future litigation, the award must be executed with the help of a divorce lawyer. This will help in avoiding disputes between the parties in the future.
Points to Keep in Mind while Hiring a Divorce Lawyer for Mediation
The client must adhere to the following points while hiring a divorce lawyer for mediation. These include-
- The lawyer must have prior experience and knowledge of mediation and its proceedings. He must be aware of the rules of mediation.
- The lawyer hired must be pro-mediation and not against it. Only a lawyer which supports mediation proceedings can help in amicable settlement of dispute.
- He must cater to the interests of the clients and must not have vested financial interests.
- He must be experiences in handling divorce and related cases.
- The client must be clear in his head that whether he requires the advice of the lawyer throughout the mediation proceedings or only for the first consultation.
- The lawyer must have handled divorce mediation proceedings in the past.
- The lawyer must be in favour of mediation. He must help the parties is resolving their issues and help them out of a deadlock. He must not force litigation on the parties. He must not gamble the client’s time and money for his own personal interests.
It is pertinent that the parties must discuss with the lawyer that whether their case is suitable to be decided with the help of a mediation. The domestic violence disputes might not be suitable for a mediation. So, it is better to have a clear understanding that which cases are qualified for mediation. Mediation is better than litigation as it is less cumbersome and time consuming. The proceedings are voluntary and party driven. A lawyer can help in understanding the case and in negotiating the suitable claims. It can help in understand the laws.
Our divorce lawyers at Ricky Chopra and International Counsels have an experience of more than 3 decades in handling divorce related matters. They have handled mediation proceedings in the past and have helped the parties to reach an amicable settlement. Our lawyers have also handled maintenance and child custody cases in the past and have helped in providing the suitable solutions. RCIC’s practice as one of the best Divorce Lawyers in India
