Introduction:
Indian judiciary comes in the list of the golden ager judicial system, however, one of the famous and distinguished fact is that there are a lot of pending cases and therefore there is a long list of unresolved cases which puts pressure on the judiciary and is also one of the reasons why Indian people generally avoid court cases. Even after the establishment of thousands of fast track courts, there is still a long list of pending cases through these fast track courts that are very efficient in solving the disputes.
This issue gives the idea of Alternate Dispute Resolution (ADR), which is an effective tool to solve legal disputes in a peaceful manner and is also the money and the time saver.
Alternative Dispute Resolution (ADR)[1]
The emergence of Alternative Dispute Resolution (ADR) brought with itself an effective and conventional tool for resolving disputes. ADR can be taken up to resolve all types of disputes i.e. civil, commercial, industrial, family etc. Mainly, in ADR a neutral third party is taken up who then assists the parties to talk through the differences which will further resolve the dispute. It is a modus operandi that enables individuals to keep up the co-operation, social satisfaction and provides a way to reduce malevolence.
Importance of ADR in India
ADR is the most effective way to deal with the issue of pendency of cases and to lower the burden of the judiciary.
ADR is in resonance with the preamble of our Constitution as it aims to provide social, economic, and political justice.
It also strives hard to attain the mandates of Article 39-A which aims to achieve equality of justice and legal aid free of cost[2].
Some important provisions related to ADR
- Section 89 of the Civil Procedure Code, 1908[3]– an opportunity is provided to the parties in dispute, if it appears to the court that the dispute can be settled outside the court by way of Arbitration, Conciliation, Mediation, or Lok Adalat.
- Arbitration and Conciliation Act, 1996 and,
- The Legal Services Authority Act, 1987
Advantages of Alternative Dispute Resolution
- It allows the people to resolve disputes in a short period when compared to courts.
- It is much more cheaper than litigation.
- It provides a less formal way and hence is convenient for parties to resolve their disputes.
- People become more expressive due to a less formal approach this leads to resolve the dispute quickly.
- The chances of people to restore their relationship is more when compared with that in courts.
- It protects the best interest of the parties.
Modes of Alternative Dispute Resolution
Arbitration
The process of Arbitration to start there need to be a valid arbitration agreement prior to the unfolding of the dispute. In arbitration parties hand on their dispute to an arbitrator. The parties are bound by the decision of the arbitrator and this is called an “award”. Any party to a contract that has an arbitration clause, can turn to the arbitration clause either himself or through an authorized agent in this behalf.
Procedure:
- An applicant files a statement of claim and attaches an arbitration agreement with it. Initially, the applicant initiates an arbitration by filing a statement of claim that specifies the relevant facts and remedies. The application must include a certified copy of an arbitration agreement.
- A copy of the statement of claim is given to the defendant so that he can understand the claim of the plaintiff.
- The respondent then gives his reply via filing an answer against the claim of the claimant.
- Parties mutually out of many can appoint one arbitrator.
- Parties then exchange the documents and relevant information for the furtherance of the hearing called ‘Discovery’.
- Parties then meet in person and give several pieces of evidences to prove their points.
- After the examination of the witness arbitrator gives a binding award.
According to section 8 ofArbitration and Conciliation Act,1996[4] in case any party in spite of going for the arbitration take the course of a civil court and a clause for arbitration is present in the contract then the other party can put such clause to the notice of the court and the court if it deems fit will refer the dispute to be disposed of by way of arbitration. Such application by the other party must contain the certified copy of the arbitration agreement.
Mediation
In the case of mediation, a third party aims to resolve the dispute and bring two disputing people in harmony. The third-party who act as the mediator have certain disputes to affect the dispute resolution. The overall process is in the hands of the party to the dispute. Mediators do not put forward their views during the whole process.
Procedure:
- An opening statement is made by the arbitrator in which he declares that he does not have any interest in the dispute between the parties other than to solve it.
- Next comes the joint session in which both the parties come together and put forward their case in front of a mediator who in return listen to them without interrupting them and then to encourage them to talk to each other to reach out on the mutual decision
- He needs to gather the confidence of both parties.
- Mediator then reaches out to the agreement.
Conciliation
Conciliation is a semblance of arbitration that is less formal than it in nature. Conciliator is the person who resolves the dispute by meeting the parties separately.
It differs from arbitration as unlike in the case of arbitration it does not need any prior agreement to go for the arbitration. It is the process of facilitating an amicable resolution between the parties. whereby the parties to the dispute use conciliator who meets with the parties separately to settle their dispute.[5]
Procedure:
- The party desiring to go for conciliation need to send to the other party a written invitation in this regard and shall also mention the key points of dispute.
- The conciliation proceedings start only when the other party agrees to resolve the dispute by way of conciliation.
Lok Adalat
Lok Adalat is also called ‘People’s Court’. The presiding officer of such court is either sitting or retired judicial officers, social activists, or members of the Legal profession as the chairman. Lok Adalat is conducted by several Legal Service Institutions including the National Legal Service Authority (NALSA). The resolution of the dispute is really quick as there are no court fees required and the proceedings are not that formal. Lok Adalat can not be taken as the ADR if the offense is non-compoundable.
Role of Arbitration[6]
Family Disputes
Every family at any definite period of time(s) encounter unfavorable situations in family can be called as a family dispute. Family disputes may happen due to several issues example disputes due to relationship breakdown, financial issues, welfare of family e.t.c.
Family Dispute according to the Family Court Act, 1984
- A suit brought by the parties in dispute praying for to a declaring marriage as null and void, restitution of conjugal rights, judicial separation, or termination of marriage.
- A suit in which prayer is regarding the declaration of matrimonial status of the person.
- A suit due to dispute regarding the property of parties to the marriage.
- A suit for granting injunction with respect to anything done in the matrimonial relationship.
- A suit declaring the legitimacy of a person.
- A suit claiming maintenance.
- A suit for guardianship, custody of the children.
Arbitration in Family Law
Arbitration in Family Law is a process in where married couples, or ex-couples, agree to resolve their issue(s) coming out of their present or prior family relations to a third party who is neutral with respect to the issues between the parties his award is final and binding on the parties to the dispute.[7]
Indian Law for Arbitration of Family Matters
In the case of J.B. Mills v. Commercial Union Assurance,[8] it was held that every matter for which civil court as per section 9 of Civil Procedure Code can take cognizance and which involves dispute(s) of private nature then such can be referred to the arbitrator. Following this case family disputes can be referred to the arbitration.
Section 89 of the Civil Procedure Code
According to the 129th Report of the Law Commission of India, all disputes should be first referred to arbitration, conciliation, mediation for the settlement and only if in case settlement is not possible this way then parties can go forward to litigation.
Following the recommendation of the law commission, u/s 89 this opportunity is provided.
ORDER XXXIIA Rule 6 of the Code of Civil Procedure
Every single issue coming under provisions of the Hindu Marriage Act and the Special Marriage Act are tuned by the provisions of this code. ORDER XXXIIA Rule 6 of the Code of Civil Procedure, explain the definition of family.
Role of Mediation[9]
A mediator is appointed by the parties to resolve the dispute in a friendly and less formal manner.
As per section 16 of the Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2006, the mediator’s duty is to ease elective issues between the parties and to exchange the view parties regarding the dispute, aide them to understand the cause of dispute, and finally to resolve such dispute(s).
Laws in Support
Section 89 of the Civil Procedure Code: Ask the civil court to encourage the litigants to go for ADR for resolving the disputes first.
Section 23(2) and 23(3) of Hindu Marriage Act, 1950 and section 34(3) and 34(4) of Special Marriage Act, 1954: Directions are given to the Courts to try to bring reunion between the parties in the dispute seeking dissolution of marriage according to the facts and circumstances of each case.
Section 9 of the Family Courts Act, 1984: Very directly ask the court to persuade the parties to come to a settlement.
Civil Procedure-Mediation Rules, 2003 – these rules empower the court to refer the dispute to the mediation for its resolution though the parties have not consented to it. Its object is aiming at the settlement of delicate issues related to marriage and family.
In the case of K. Srinivas Rao v. D. A. Deepa[10] Apex Court held that mediation can be done in criminal cases that are not compoundable if parties desire mediation, it further makes it mandatory for cases related to divorce to have mediation if there is any chance of the settlement between parties.
Role of Conciliation
The Division Bench of the Calcutta High Court in the case of Shiv Kumar Gupta v. Lakshmi Devi Gupta,[11] the divisional bench of Calcutta High Court held that section 23(3) of the Hindu Marriage Act is a mandate that judges need to follow in all matrimonial cases.
The Supreme Court, in the case of Salem Bar Association v. Union of India,[12] held that rules of ADR come up with the direction that all HC should observe the said rules with certain preferable changes.
Conclusion
With the arrival of the alternate dispute resolution (ADR), there is a different approach for the people to resolve their matrimonial and family disputes. The resolution of disputes via any ADR has gained popularity among the public in a very short period of time. This will certainly help to lower down the burden of the judiciary by disposing of more and more cases. ADR has proved itself as a very effective method for the resolution of matrimonial and family disputes.
The ADR needs more support. This will surely lower the load on the shoulders of courts apart from providing cheap and instant justice in a very effective manner.
References:
[1] Anubhav Pandey, All you need to know about Alternative Dispute Resolution, I. pleaders, https://blog.ipleaders.in/adr-alternative-dispute-resolution/
[2] INDIA CONST. art 39 A
[3] The Code of Civil Procedure, 1908, No. 5 of 1908.
[4] Arbitration and Conciliation Act,1996 , Act No 10 of 1940, section 8.
[5] Arbitration and Conciliation Act,1996 , Act No 10 of 1940, section 62.
[6] Angela D’souza, Arbitration on Matrimonial and Family Disputes, ipleaders, https://blog.ipleaders.in/arbitration-matrimonial-family-matters/
[7] Arbitration in Family Law, Lexisnexis, Nov 30,2016, https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=14+J.+Am.+Acad.+Matrimonial+Law.+333&srctype=smi&srcid=3B15&key=30c87cbfd40c69ad2ce5b9f64d02e9e0
[8] J.B. Mills v. Commrl Union Assurance, AIR 1979 Cal 56 83 CWN 162, (India)
[9] Akansha Yadav, Role of Mediation and Mediator in Matrimonial Disputes in India, Latest Laws, Aug 4, 2018, https://www.latestlaws.com/articles/role-of-mediation-and-mediator-in-divorce-proceedings-in-india-by-akanksha-yadav/
[10] K. Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226, (India).
[11] Shiv Kumar Gupta v. Lakshmi Devi Gupta, 2005 (1) HLR 483 , (India)
[12] Salem Bar Association v. Union of India[12] (2003 (1) SCC 49), (India).
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