Introduction
In India, family disputes are on the rise and the traditional legal system is not equipped to handle the large number of cases that are being filed. The judicial process is also lengthy and expensive, which has resulted in the need for an alternate dispute resolution mechanism. Alternate dispute resolution methods like mediation, arbitration, and conciliation have been gaining popularity as they are efficient, cost-effective, and provide a better solution for resolving disputes. The aim of this article is to examine the impact of alternate dispute resolution on family law in India.
Alternate Dispute Resolution Mechanisms
Alternate dispute resolution mechanisms like mediation, arbitration, and conciliation have been gaining popularity in India as an effective way to resolve disputes outside the traditional legal system. Mediation is a voluntary process where a neutral third party assists the parties in resolving their dispute by facilitating communication and negotiation. Arbitration is a process where a neutral third party hears the dispute and makes a binding decision. Conciliation is a process where a neutral third party assists the parties in reaching a mutually acceptable solution.
ADR in Indian Family Law:
The Indian legal system has recognized the importance of ADR and has incorporated it into the family law system. The Indian judiciary has taken significant steps to promote ADR in family law cases. In 2005, the Family Courts Act was amended to include the provision of ADR mechanisms in family court proceedings. Sec 9 of the Family Courts Act establishes responsibility upon the Family Court to persuade the parties to settlement of the dispute. Sec 9(1) states that in any case where it is possible for settlement due to facts and circumstances, then the Court subject to any rules made by the High Court can assist such procedure. Under Sec 9(2), the Court may adjourn the proceedings for a period if it believes settlement is possible. Section 23(2) of the Hindu Marriage Act, 1955, provides that while granting a decree of divorce, the court must satisfy itself that the parties have made reasonable efforts to reconcile their differences through ADR methods such as mediation or conciliation. The court may even adjourn the proceedings to give the parties an opportunity to attempt reconciliation through ADR methods.
Similarly, Section 89 of the Code of Civil Procedure, 1908, provides for settlement of disputes through ADR methods, including mediation and conciliation. This provision applies to family law disputes as well. The Family Courts Act, 1984, which established family courts in India, emphasizes the use of ADR methods for resolving family disputes.
In Jagraj Singh v. Birpal Kaur case,[1] the court annexed ADR mechanism is mandatory under section 23(2) of the Hindu marriage act. In Sangeetha v. Suresh kumar,[2] the Court observed the importance of reconciliation in matrimonial dispute for the welfare and interest of the children.
If a dispute is commercial in nature between the family members, then the dispute can be mediated through Commercial Courts Act, 2015. In which under Sec 12A underlines pre institution mediation and it is mandatory to settle the dispute through pre institution mediation before filing the suit. In case of R M Investments Trading Co v. Boeing Co[3], the SC interpreted commercial relations in support of relations consisting family, cultural, social, economic or political nature in accordance with UNCITRAL Model Law.
Mediation:
Mediation is one of the most popular forms of ADR used in family law cases in India. Mediation is a process where a neutral third party, the mediator, helps parties in a dispute reach a mutually acceptable solution. Mediation is voluntary, and parties can terminate the process at any time if they feel it is not working for them.
In India, mediation is governed by the Mediation and Conciliation Rules, 2004, which set out the procedure for conducting mediations. The rules require parties to attend mediation sessions in good faith and with the intent to resolve the dispute.
Mediation is especially useful in family law cases where emotions can run high, and parties may struggle to communicate effectively. The mediator can facilitate communication between the parties and help them find common ground to resolve their dispute.
Arbitration:
Arbitration is another form of ADR that is commonly used in family law cases in India. Arbitration is a process where parties submit their dispute to an arbitrator, who makes a binding decision on the dispute. Arbitration is more formal than other forms of ADR. In Indian family law, arbitration is a form of alternative dispute resolution where a neutral third party, known as an arbitrator, is appointed by the parties to resolve their dispute outside of court. The arbitrator’s decision is binding on the parties, and the process is governed by the Indian Arbitration and Conciliation Act, 1996. In family law disputes, arbitration can be used for issues such as property division, child custody, and alimony. However, there are limitations to the use of arbitration in certain family law matters, such as those involving domestic violence or child abuse.
Conciliation
Conciliation has had a significant impact on Indian family law. The Indian legal system recognizes the importance of preserving family relationships and encourages parties to seek amicable settlements through conciliation. Family courts in India provide a platform for parties to attempt to resolve disputes related to marriage, divorce, child custody, and maintenance through conciliation. The Family Courts Act, 1984 and the Hindu Marriage Act, 1955, mandate that parties should first attempt to resolve their disputes through conciliation before approaching the court. This has led to a reduction in the number of cases being filed and has also helped in preserving the sanctity of marriage and the family. The agreement is also enforceable as decree of Court under sec 74 of Arbitration and Conciliation Act. Additionally, the introduction of mandatory mediation in divorce cases has helped in reducing the acrimony between parties and has led to a more peaceful resolution of disputes.
Also in case of Gaurav Nagpal v. Sumedha Nagpal[4] case, the SC observed the efforts of the conciliation in bridging the communication gaps between people.
Impact of Alternate Dispute Resolution on Family Law
Speedy Resolution of Disputes
The traditional legal system in India is known for its slow pace, which has resulted in the backlog of cases in courts. The use of alternate dispute resolution methods like mediation, arbitration, and conciliation has resulted in the speedy resolution of disputes. This has a positive impact on family law as it helps to resolve disputes quickly, without the need for lengthy court proceedings.
Cost-Effective
Family law disputes can be expensive, especially when they are fought in court. The use of alternate dispute resolution methods like mediation, arbitration, and conciliation is cost-effective as it eliminates the need for costly court proceedings. This makes it more accessible for the average person to seek justice and resolve their disputes.
Confidentiality
Alternate dispute resolution methods like mediation, arbitration, and conciliation provide confidentiality to the parties involved. This means that the details of the dispute and the resolution are kept private, which is especially important in family law cases where sensitive issues are involved.
Customized Solutions
Alternate dispute resolution methods like mediation, arbitration, and conciliation provide customized solutions to the parties involved. This means that the parties can come up with a solution that works best for them, rather than having a one-size-fits-all solution imposed on them by the court. This is especially important in family law cases where the needs of each party are unique.
Reduced Hostility
Family law disputes can be emotionally charged and can lead to hostility between the parties involved. The use of alternate dispute resolution methods like mediation, arbitration, and conciliation can help to reduce hostility between the parties involved. This is because these methods encourage communication and negotiation, which can lead to a more amicable resolution of the dispute.
Improved Communication
Alternate dispute resolution methods like mediation, arbitration, and conciliation encourage communication between the parties involved. This is especially important in family law cases where communication between the parties has broken down. Improved communication can help to resolve the dispute and can also improve the relationship between the parties involved.
Conclusion
Alternate dispute resolution methods like mediation, arbitration, and conciliation have had a significant impact on family law in India. They provide a faster, cost-effective, and more amicable way to resolve disputes. They also provide customized solutions and confidentiality, which is especially important in family law cases where sensitive issues are involved. The use of alternate dispute resolution methods in family law cases has the potential to reduce the backlog of cases in courts and can provide a more accessible way for the average person to seek justice.
The impact of ADR on family law has been positive, as it has helped in reducing the burden on courts and provided a faster and less adversarial way of resolving disputes. A study by the National Law School of India University, Bangalore, found that mediation had a success rate of 72% in resolving family disputes.
However, it is important to note that ADR is not a panacea for all family law disputes. In some cases, litigation may be necessary to protect the interests of the parties involved. Therefore, it is essential to strike a balance between ADR and traditional litigation in family law matters.
In conclusion, the Indian legal system recognizes the importance of ADR in resolving family disputes and has made provisions for its use in various laws. ADR has had a positive impact on family law by providing a faster, less expensive, and more amicable way of resolving disputes. However, it is important to strike a balance between ADR and traditional litigation in family law matters.
References
- Hindu Marriage Act, 1955.
- Code of Civil Procedure, 1908.
- Family Courts Act, 1984.
- National Law School of India University, Bangalore. “Mediation in Family Disputes: An Empirical Study.” (2012).
- Nadini Gore and Karanvir Singh Anand, “Alternative Dispute Resolution As A Solution For Family Disputes.” (2022). https://www.mondaq.com/india/arbitration–dispute-resolution/1199420/alternative-dispute-resolution-as-a-solution-for-family-disputes
- STEEGH, NANCY VER. “Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process.” Family Law Quarterly, vol. 42, no. 3, 2008, pp. 659–71. JSTOR, http://www.jstor.org/stable/25740675. Accessed 4 Mar. 2023.
[1] 2007 (2) SCC 564
[2] JT 2008(8) SC 521
[3] 1994 SCC (4) 541
[4] AIR 2009 SC 557
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ARTICLE BY ATTILI LEELA NAGA JANAKI RAJITHA.
