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Mediation or assisted alternative dispute resolution provisions

Legislation should specifically preclude police and legal system officials from offering mediation or assisted alternative dispute resolution services to parties, both before and during legal proceedings in domestic and dowry-related violence cases. Police and judges should not attempt to improve relations in the family by offering these services or by mediating a dispute. (See: UN Handbook 3.9.1 and section on Duties of police officers). Also, mediation, counseling and alternative dispute resolution should never be a prerequisite to legal proceedings where domestic violence or dowry-related violence is involved.

Mediation reflects an assumption that both parties are equally at fault for the violence. It assumes that both parties have equal bargaining power, yet in reality an abuser may hold tremendous power over a victim. Mediation also removes a domestic or dowry-related violence case from public view and objective judicial scrutiny. (See: Mediation, StopVAW, The Advocates for Human Rights; and Family Violence: A Model State Code, Sec. 311)

 

Example: Spain’s law prohibits the use of mediation in domestic violence cases. (Art. 44)

 

 

CASE STUDY: Under Article 14 of India’s domestic violence law, the judge may direct the victim or perpetrator to undergo counseling either together or singly. In T. Vineed v. Manju S. Nair, 2008(1)KLJ 525, the court appointed a counselor to mediate child custody issues in a case involving an application under the domestic violence law and divorce proceedings on the basis of cruelty. A settlement was reached with the counselor, and the High Court of Kerala ruled that matrimonial cases must exhaust court-mediated settlement option prior to starting the legal proceedings. (See: Lawyers Collective, Staying Alive: Second Monitoring & Evaluation Report 2008 on the Protection of Women from Domestic Violence Act, 2005, 2008, p. 64-65) Legislation should disallow mediation or court-mediated settlements in any cases involving domestic violence. (See: Section on Mediation; Mediation, StopVAW, The Advocates for Human Rights)

 

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