ONLINE MEDIATION OF MATRIMONIAL ISSUES -PROS AND CONS

Authors:

Ishwitha Mondal, Presidency University, Bangalore.

Himanshu, School of law Christ University, Bangalore


Editor:

Sri Sai Kamalini, School of Law, Sastra University, Chennai.



INTRODUCTION

In the situation of a pandemic like COVID 19 largely all courts have shut down, so in this case, online mediation seems to be an attractive option to get a legal solution. ‘As courts are reopening now, one might at first believe that the pre-pandemic status of courts dealing with a steady flow of matrimonial cases is being slowly but inexorably restored. However, not only is online mediation still as desirable an alternative as it was during pandemic darkest days, it remains an attractive option specifically in the area of matrimonial law, where disputed issues are personal and sensitive.’[1]

Before knowing about ‘online mediation’ we need to know the concept of mediation first. The concept of mediation is a part of Alternative Dispute Resolution. Section 89 of CPC mentions about mediation. This method is so useful is that it focuses on the non-coercive and consensual process to resolve the dispute between the parties[2]. If the matter is taken to the court for litigation then it may generate any ill-feelings between the parties but the process of mediation prevents it. It also saves both time and money. A mediator is appointed to solve the problem and solution should be such that two parties reach an agreement which is beneficial for both the parties. And for these reasons it had spread throughout many countries in the globe.


ADVANTAGES OF ONLINE MEDIATION IN MATRIMONIAL ISSUES

Mediation is much more cost-effective than litigation. In the case of matrimonial issues which also affects emotions, clients try to reach in a solution as soon as possible. In this case, unlike court, it is not required to follow any strict rules or regulation and it is not required for them to wait until their turns come.

The process of online mediation which became popular in the time of lockdown also made the work much faster and easier. The parties or attorneys need not move from one place to another rather they can sit at home and can have the solution, which consumes both time and money. It is also not required for them to give their whole day upon this, they can also do any work in the time when they need to give time when it is physical.

As technology is developing the world is also progressing. There are many video conferencing App like Zoom, Google Meet, Teams etc, which makes the work much easier. In online mediation, the mediator can address the issue more efficiently and quickly cause it is not required for him to change his position to meet the parties or fulfill necessary requirements. ‘Mediator can provide virtual break –out rooms and may share the screen with whatever parties thought expedient that moment’[3]. It is also much beneficial for parties to cause if anything is required as evidence then they can instantly submit it but in case of physical presence, if they forget such things to take along with them, then it will be not possible for them to submit it.

In the time of COVID 19 online mediation can be very effective in solving matrimonial problems. In this time all the couples are almost staying together, so the probability arises that there would be a conflict may be mental or physical, can arise between the parties. So, when the court which is already burdened with the number of cases will suffer a backlog. Within this, it may happen that matrimonial issues which had arisen also taken its worst form. In these cases, online mediation has a major role to play.

‘Combined with the fact that a party can participate in online mediation from home, this would maximize party’s ability to deal with any pressing family issues, especially those that may involve children, while still advancing the goal of resolving an instant dispute.’[4] The attorney’s, party’s and the mediator can attend it from their comfort zone, it is not required for them to move from one place to another and to come together to start up with the process.

So, Online Mediation proved to be an appealing option for the parties. They need not face all the issues in the court, which is also very costly and takes much time. The only concern is that much more privacy should be given to solve the dispute and it should not go outside of the sphere.

In the case of Gaurav Nagpal V. Sumedha Nagpal,[5] it was held that emphasis should be given to save the marriage rather break it. It is more important in the cases where the children get effected due to dissolution of marriage.

In the case of K.Srinivas Rao vs. D.A. Deepa,[6]it was held that if matrimonial cases are taken to the court then at first instance the case can be referred for mediation. Matrimonial issues which involve custody of children maintenance etc. are preeminently fit for mediation.


DISADVANTAGES OF ONLINE MEDIATION IN MATRIMONIAL ISSUES

Well no doubt unless the conflict can wait out these ongoing crises, mediation though the online means is the only forum available to the individuals, it’s the only online mediation process that is available to one in this pandemic times. As however, you may take the precaution, even the restriction of social distancing has been lifted, but still, it may take and should take some time for parties for going on with in-person meetings again. Well, there are non-perfection as such been guaranteed in the online process but yes it does serves the motive and many pitfalls can be reduced with planning.[7]

Well, it is quite obvious that an online mediation in general as well as for marriage does have certain limitations. “General understanding for this can be understood as it could simply lead to wastage of time, efforts, and money if the negotiations fail. If the mediator is inexperienced then it can be incomplete or unduly favourable to one spouse. A smart spouse may even hide assets/income which can lead to failure of uncovering unaccounted hidden financial assets and may leave the weaker spouse penniless. If one spouse is dominating and other submissive, the settlement may be one-sided. Thus, the mediators must be trained properly and are knowledgeable.”[8]

Well rightly said by Joel in his writings that “Electronic communication is no substitute for the ability of face-to-face conversations to foster important process values of mediation”.[9]Let’s now discuss some of the major hindrances and drawbacks of the online mediation that a couple could face.

Impersonal: “There is almost universal agreement that mediation is most effective if the parties to the dispute are physically present before the mediator.”[10] Well, it is quite obvious from mediation own nature that it is in the oral form designed to involve all the parties, creating a sense of connectivity leading to interpersonal contacts. One of the main loophole and the set back in online mediation is the very much of its nature only where it inherits the electronic distance among the parties. The general understanding of negotiation is meeting out of court and trying to resolve the issue informally without having many legal formalities “creating an atmosphere in which the parties trust the mediator to help them resolve their dispute is considered vital, if not indispensable, by most mediators”[11].

“Oral expressions of feelings in a face-to-face setting have a richer and more meaningful context than written expressions of feelings in an e-mail exchange, In this way, it is more difficult to evaluate the flexibility of a particular party or the strength of a party’s feelings or confidence on particular issues”. [12] now concerning marriages, lets now try to understand and have a better purview with the help of an example, suppose a couple have certain issues and they referring the matter to the online mediation, as there stays a network and online distancing at no instance or it would be a really difficult job to create a sense of connectivity among the parties with the mediator. The mediator would be incompetent as he can’t control something which is out of his purview, along with it could also happen that the parties due to not being in person will not be able to share all the matter and their leads, thus making the online mediation impersonal as one of the major hindrances to settle the dispute for marriage concerns.

Confidentiality concerns: Katsch has discussed the concern over the protection of confidential material in ODR, where he refers that, “Whereas traditional mediation does not create a physical record, online mediation creates an electronic record. This could potentially enable a party to print out and distribute e-mail communications easily and without the knowledge of the other party. This may hinder the development of open and honest exchanges in cyber-mediation.”[13]. which is certainly a major challenge as all the parties coming to the dispute resolution may always not be genuine and can falsely lead to making the matter personally profiting them with malice, which is in itself is very much against the basic values of justice.

Potentially inaccessible: Well it will not be untrue to say that a great section of our society is illiterate. Understanding of online measures is a great difficulty for them. Along with a problem of accessing an online computer that directly poses a problem for many parties who were earlier involved in disputes resolution of the offline transaction. Although mediation in itself is a fast process the online transaction of long hours and some time whole days is way more inconvenient for the people who find it uncomfortable. No doubt, it is well settled that the online mediation is one of the cheapest ways to settle the disputes but it still may unavailable to some people, as the modest fees that it requires may still be out of the many individuals budget, for instance, “Settlement Online, for example, requires payment of $300 for each settlement reached ($150 fee for each claim resolved, with an additional $150 coming out of the settlement amount). CyberSettle offer flat fees based that vary based on the amount of the settlement with a payment of $100 being required for any settlement under $5000. Fees for CyberSettle’s services are generally taken out of the settlement amount, although insurance carriers are obligated to pay an additional $150 in submission and engagement fees.:”[14] So, it is very important to consider concerning matrimonial matters that many cases are of that section of the society where those people are both unable to understand the process and also can not afford such processes.

Hackers: Getting access to the online meeting is one of the easiest way, the ‘Zoombombing’ when an unwanted guest intervenes the video conferencing. It is quite obvious in the matrimonial matter that these are some personal matters, and when suddenly from one party uninvited people get the entry and tries to get a hold over the transaction of settling the dispute and tries to manipulate and influence the whole transaction, in itself kills the nature of mediation in itself.

Communications limitations: Well around 90% of the experts believe that while being in an online transaction, the communication gap does exist. “Online mediation is limited in its ability to provide participants with a complete communication canvas, which can limit the mediator’s ability to interpret party cues and optimally facilitate their communications and negotiations.”[15]. It could generally understand that until or unless the mediator and the parties have a prior relationship with each other, in a practical scenario, it is quite difficult to develop a great dialogue among all of the parties and mediator.

Distractions: “Participants engaging in an online mediation may more easily become distracted by incoming texts, emails and outside noise. A party may even self-distract as a form of passive and defiant disengagement from the negotiations. It may be difficult for the mediator to pick up on a party’s disengagement in an online session, impacting productive communications.”[16] In a matrimonial dispute, the focus is one of the most difficult to have, and having been alone in the room directly distracts an individual also taking him back to memories affecting the effectiveness of mediation.

Bandwidth disruptions: Well as we all know even after holding the best of best internet connection then even also the internet lags sometimes. And it is quite obvious that all the party does not hold a good connection so there is a great chance that their could occur a lag which could lead to unhearing of major aspects. And as we all must have experienced this somewhere in past, it does also creates irritation ultimately leading the party to drop and back of, which is no the aim of Alternate dispute resolution mechanism. The internet glitch can impact adversely on the effectiveness of mediation.

[1]Hon. David Saxe(Ret.), Online Mediation of Matrimonial Matters? It Works, JD SUPRA, available at https://www.jdsupra.com/legalnews/online-mediation-of-matrimonial-matters-60240/ , last seen on 13/10/2020 [2]Yash@2410, Mediation in Family and Matrimonial Disputes, Legal Service India, available at http://www.legalserviceindia.com/legal/article-1715-mediation-in-family-and-matrimonial-disputes.html, last seen on 13/10/2020 [3]Supra 1. [4]Ibid [5]AIR 2009 SC 557 [6](2013) 5 SCC 226 [7]Jennifer Winestone, Online Mediation: The Good, The Bad and the Necessary, (16th October 2020), https://www.winestonemediation.com/online-mediation-the-good-the-bad-and-the-necessary [8]Yash Dahiya, Role of Mediation in Solving Matrimonial Dispute, (16th October 2020), https://medium.com/legis-sententia/role-of-mediation-in-solving-matrimonial-dispute-b03bd6c0dda5 [9]Joel B. Eisen, Are We Ready for Mediation in Cyberspace? 1998 BYU L. Rev. 1305, 1308 (1998). [10]William T. D’Zurilla, Alternative Dispute Resolution, 45 LA. B.J. 352 (1997). [11]Joseph W. Goodman, THE PROS AND CONS OF ONLINE DISPUTE RESOLUTION: AN ASSESSMENT OF CYBER-MEDIATION WEBSITES, (16th October 2020), https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr [12]Ethan Katsh, Janet Rifkin and Alan Gaitenby, E-Commerce, E-Disputes, and E-Dispute Resolution: In the Shadow of “eBay Law,” 15 OHIO ST. J. ON DISP. RESOL. 705, 714 (2000). [13]M. Ethan Katsch, Dispute Resolution in Cyberspace, 28 CONN. L. REV. 953, 971 (1996). [14]See SettlementOnline, Settlement Online Pilot Program Proposal, at http://settlementonline.com/Proposal.html (last visited Nov. 27, 2002). See Cybersettle, Attorney Pricing, at http://www.cybersettle.com/products/atty_pricing.asp (last visited Nov. 27, 2002). [15]Jennifer Winestone, Online Mediation: The Good, The Bad and the Necessary, (16th October 2020), https://www.winestonemediation.com/online-mediation-the-good-the-bad-and-the-necessary [16]Jennifer Winestone, Online Mediation: The Good, The Bad and the Necessary, (16th October 2020), https://www.winestonemediation.com/online-mediation-the-good-the-bad-and-the-necessary

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