As a lifelong contract, it is not unusual for marital disputes to arise between marital partners, it is for this purpose that the matrimonial causes act was enacted to ensure ease in resolving matrimonial disputes when they arise.
In the indigenous african family setting, matrimonial disputes, when occasioned, are brought before a third neutral superior party who sees to the peaceful resolution of the dispute.
The applicability of mediation to resolve marital disputes can be likened to this. It is infact a modernized version of the indigenous means of resolving matrimonial disputes, it is therefore not an alien concept.
The Matrimonial Causes Act (MCA), takes cognizance of the possible effectiveness of a non-adversarial means of resolving marital disputes. Section 11 (1) MCA is to the effect that a duty is imposed on a court in which a matrimonial dispute has been instituted to give consideration of possibility of reconciliation of parties. This is to protect the sanctity of the marriage and provide the conflicting parties an option of reconciliation.
Section 11 (1)(b) MCA further imposes a duty on the judge constituting the court, if it at any time appears from the nature of the dispute, evidence tendered, attitude of the parties to the dispute or the counsels of the conflicting parties, that there is a possibility of reconciliation of both parties, to firstly, adjourn the proceeding so as to afford the parties considerable amount of time to explore the option of reconciliation or assist in the reconciliation process by interviewing the parties to the marital dispute with or without their counsels as it pleases them and with their consent with a view of effecting a reconciliation. Section 11 (1)(c) MCA further empowers the judge to nominate a person with experience or training in marriage conciliation with the consent of the parties to the dispute to assist them in resolving the dispute.
This statutory provision clearly provides an alternative and non-litigant option of resolving matrimonial disputes and also provides a prema facie platform for the employment of mediation, it gives an option of a neutral third party, confidentiality, consent of both parties are acquired, all of this are the start point for a mediation process.
Mediation is simply the employment of a neutral third party referred to as the mediator to assist conflicting parties to resolve their dispute in a flexible pattern that leaves the outcome as a win-win situation. As a mechanism of alternative dispute resolution, it has proven to be effective in resolving not only matrimonial disputes but also commercial and private disputes.
A Mediation process would include an informal and yet confidential setting in which parties to a marital dispute can, through the use of very peaceful means resolve their conflict, it is purely non-adversarial. A marriage is said to be sacred, bringing its dispute before public eyes would not resolve such dispute without a dent on the sacred nature of the marriage, for this cause, it would be for the better good of the parties if their dispute is resolved behind closed doors in confidentiality.
Most matrimonial disputes are borne out of misunderstanding, lack of communication, differences in opinion, with the employment of Mediation, the parties are provided a platform for which a bridge of communication is built for them to assist them arrive at a consensual, collaborative and peaceful resolution.
Mediation takes into priority the interest of the marital parties which includes emotional elements, marriage is an emotional union and disputes borne from emotions might not be effectively resolved without addressing the emotional effect, this is very unlikely to happen in an adversarial setting. Not to mention that it excludes the inclusion of stringent procedures, is time bound and very cost efficient.
A win-win situation is very likely to not only resolve the dispute between marital partners but also increase the bond between them as both parties needs are efficiently satisfied.
A mediation process might however not be a likely perfect route for certain disputes in which either party to the dispute might be subjected to more pain and trauma. An instance is one in which either party is a victim of domestic violence or has a stigma borne from the relationship, it might be to the best of the interest of the party in such a circumstance to not come face to face with the other party until the party heals.
Notwithstanding, except in special rare circumstances, employment of mediation to resolve marital dispute on a platform provided for by the Matrimonial Causes Act would be highly effective and efficient in resolving marital disputes.