Article in this month’s ABA Journal, available here.
As is so often the case, even a simple narrative here offers the juxtaposition of efficiency / courtclog issues, human rights, and cultural differences. Less articulation of some of the other kinds of mediation features than one often sees. But still, enough here that you could probably assign this brief article as an end-of-semester essay in many mediation courses and leave students with plenty to discuss.
MM
While I cannot say that I am familiar with how cultural norms are intertwined with the judicial process in India, I can say that I think the idea that Mr. Schachter has implemented of mediating marital disputes in India is a great idea on paper. My only hesitation is the mediator having the right balance of evaluative and facilitative techniques. Specifically the parties in the mediation may be reactive towards having very evaluative American trained judges and mediators. It seems here that there are strict gender roles in Indian society, so that very evaluative mediators that help what seems to be the weaker party here (the wife) may not be effective in getting the dispute resolved. A more facilitative mediator may be more effective in cases like this, especially since the extended family is inside the mediation. A facilitative mediator would really draw-out each party’s stance on the issues so that together the parties can create their own integrated solution to the marital dispute. Each party understanding the other party’s side is crucial to a human rights dispute such as this. The mediator must be highly trained when controlling a mediation with so many family members involved, but I believe the mediation process can be highly effective in marital disputes in India. Finding the right balance between evaluative and facilitative techniques by the mediator is key to mediation success in marital disputes in India.
In reading Filisko’s article on implementing a court-annexed mediation system in India, I was struck by the overwhelming risk that a woman using this system for marital disputes would become overwhelmed by the large number of people involved, in combination with the threat of being “tainted for the rest of her life,” and agree to outcomes that lack the ‘true justice’ offered to her through a court system. The arguments of duress and unconscionability against any resulting agreement would be plentiful. However, I quickly realized that my assumption was based on the court system of the U.S., and not on the system available to Indian women now, where they are waiting years for resolution and the ‘justice’ available to them would most likely fail to expand the pie of possible solutions to include an opportunity for the woman to return to being a credible member of her community. The prospect of being able to alter the cultural norm in a community by including them in mediation is interesting, but I admit that I am skeptical about how realistic this ideal is. I think the more honest goal for this system in India is to relieve the courts of their backlog. While efficiency is a positive goal, I’m not sure that I am comfortable with such sensitive human rights and cultural issues being decided via mediation instead of having the cases tried and able to set precedent in India’s common law system.