New Delhi
Supreme Court judge Justice BV Nagarathna on Saturday cautioned that mediation in family disputes could further traumatise women who are victims of violence, coercive control or a serious imbalance of power. To achieve this goal, she proposed that a qualified child psychologist be attached to the mediation process rather than be consulted later for a report. To ensure this is practical, Justice Nagarathna, who is Chairperson of the Supreme Court Committee for Family Court Matters, said that the 820-odd family courts across the country should be provided with a permanent, qualified counselling and mediation unit, with psychologists and social workers on the regular establishment rather than on annual contracts.
Speaking at a regional conference of the Supreme Court Committee for Family Court Matters in Guwahati, she said mediation cannot substitute adjudication and that a woman’s bargaining position is as worthy as her legal entitlement. Sharing her views on “ADR versus Adjudication in Family Disputes”, Justice Nagarathna examined the issue from the perspective of women. She said mediation offers speed, privacy and confidentiality, allowing women to reach decisions on the return of stridhan, their children’s schooling and a lump-sum payment in place of instalments. She said that family courts were never intended to be spaces that encouraged adversarial actions but now function as civil courts merely under a different name. Looking at the pendency of cases in these courts, the judge said that no party wants to litigate for years and would rather resolve disputes expeditiously. Highlighting gaps in the existing mediation process, she proposed that in mediation of child custody cases and visitation rights, the focus should not be on getting a custody decree but on arriving at a “mediated parenting plan”. Stressing the need for “child-inclusive” mediation, the judge said that experience has shown that in a contested custody matter, the counsel for each parent is only seeking to establish that the other parent is unfit. “Is not a mediated parenting plan a better instrument than a custody decree,” the judge said, suggesting that a trained child psychologist must ascertain the views of the child and convey them to the parents during mediation.
