Legislation

Throughout this knowledge module, reference to certain provisions or sections of a piece of legislation, part of a legal judgment, or aspect of a practice does not imply that the legislation, judgment, or practice is considered in its entirety to be a good example or a promising practice.

Some of the laws cited herein may contain provisions which authorize the death penalty. In light of the United Nations General Assembly resolutions 62/14963/16865/206, and 67/176 calling for a moratorium on and ultimate abolition of capital punishment, the death penalty should not be included in sentencing provisions for crimes of violence against women and girls.

Other Provisions Related to Domestic Violence LawsResources for Developing Legislation on Domestic Violence
Sexual Harassment in Sport Tools for Drafting Sexual Harassment Laws and Policies
Immigration Provisions Resources for developing legislation on sex trafficking of women and girls
Child Protection Provisions Resources on Forced and Child Marriage
Other provisions related to dowry-related and domestic violence laws
Related Tools

Mediation or assisted alternative dispute resolution provisions

Last edited: February 28, 2011

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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)