ALTERNATIVE DISPUTE RESOLUTION AND FAMILY LAW: ANALYSING THE FUTURE AND CHALLENGES BY AKANKSHA GOEL

India is a land of diverse cultures and various acts have been enforced to enact family laws. Still, like any other country there exist disputes over marriage, divorce, child custody, maintenance amongst Family. In India, the idiom of not washing your dirty laundry in public is too popular and that leads to people trying to keep their family matters as confidential as possible. Alternative Dispute Resolution (ADR) provides a solution to that and helps in maintaining secrecy and confidentiality along with many other benefits such as time effectiveness and satisfaction of both the parties.

THE INTERSECTION OF ADR AND FAMILY LAW

India has been using amicable modes of dispute settlement since time immemorial. Earlier instead of going to court people had faith in the “panchayat system” to settle the disputes which arrived amongst them. As a part of systematic reforms, Alternative Dispute Resolution and other Legal Mechanisms have been identified by the judicial setup of India, hence increasing access to justice. The Legislature has also accepted the same by implementing various acts to facilitate proper resolutions. This has increased the use of ADR for resolving family disputes.

The Arbitration and Conciliation Act, 1996[1] was enforced to make arbitration and conciliation more effective in India in both domestic as well as international matters. The act follows the “UNCITRAL Model Law on International Commercial Arbitration[2]. This has helped in establishing a guideline, hence increasing the use of Arbitration and Conciliation.  Section 89 of the Code of Civil Procedure[3] (CPC) provides for settlement outside code. Order X and Order XXXIIA of the CPC also play an important role when ADR is taken into consideration. Even the “Lok Adalat established under the Legal Services Authority Act, 1987 looks into mediation, conciliation and informal settlement of disputes in litigation”[4]. Furthermore, Section 23 of the Hindu Marriage Act, 1955[5] and Section 34(3) of The Special Marriage Act, 1954[6] provides for reconciliation. The Family Courts Act, 1984[7] aims to “ provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.”[8] The main legislation that has been enforced is discussed in the next paragraph.

ADR AS A MODE OF FAMILY DISPUTE RESOLUTION

Litigation is often a time and resource-consuming process, whereas ADR tends to cater to the diverse needs of the parties. It has reduced the delay that is caused while depending upon courts for justice. It helps both the parties to win instead of one suffering at the cost of the other. ADR also helps them to talk with each other and find the root cause of the problem allowing them to work things out.

Reconciliation is necessary under the Hindu Marriage Act and Special Marriage Act. This gives the parties a considerable amount of time to get back together and sort things out and avoid hasty decisions that might affect them for the rest of their lives. Moreover, the family courts that have been established are friendly and provide a safe environment for the parties to put forth the problems they are facing.

Couple counselling is often used to understand the grass root problem and to solve it. It also helps provide a friendly environment unlike courts, where one can speak up their problems and the reasons behind it. Family courts usually provide 6 months before granting a divorce for reconciliation.

In the case of Jagraj Singh v. Birpal Kaur[9], the apex court had reflected the importance and legislative intent of necessary reconciliation procedures. It shows how necessary the legislative provisions are to provide an opportunity to the parties. The legislation aims at protecting the sacred institution, but if the same is not possible after reconciliation the further settlement is available.

THE FUTURE FOR ADR IN FAMILY DISPUTES

ADR is comparatively a newly emerging field in India, but the legislations have helped in increasing its usage over time. Family counselling has proved to be a way of resolution in family disputes. The courts in various cases have proved that ADR has helped in reducing court cases as well as divorces. Litigation in family disputes also results in social stigma and loss of reputation that is the main reason why people turn towards ADR. ADR is a boon for the future due to the following reasons:

  • Encourages Communication: Lack of communication is mostly the factor which leads to family disputes, ADR helps in facilitating communication between the two parties and removing the use of courts in reaching a solution. ADR has been gaining more popularity due to the increased personal touch while providing justice. Even the confidentiality of matters has played a paramount role in its increasing use.
  • Individual Counselling: ADR is the future of family disputes as it helps with individual counselling, identifying problems, and a solution to it, in much less time and in a much more confidential way thus limiting outside interference and the loss of reputation. The amicable dispute resolution also helps in revealing facts that might be afraid of speaking up in courts due to a lack of privacy.
  • Satisfactory Results: Litigation does not necessarily lead to satisfactory results, but ADR has proved to be satisfactory for both parties. They aim at preserving the relationship between the parties and have been deep-rooted in our Indian culture since time immemorial. It also helps in catering with the specific needs due to a lack of precedents and differences in every case. ADR would help in strengthening the justice system soon.
  • Healthy Alternative: The promotion of ADR would also help to reduce the backlog of cases and provide a healthy alternative. It would help the family to resolve the disputes without involving much external interference. It is also less time consuming hence, solves the disputes within days or months as opposed to years in litigation.
THE WAY FORWARD-CHALLENGES FACED AND SUGGESTIONS

While considering ADR as an indispensable mechanism in the future, certain challenges arise. The challenges have been listed along with fruitful solutions and suggestions to curb the challenge that ADR might face in the upcoming years.

CHALLENGES

  • Lack of Family Courts: In India, the number of family courts which have been set up are quite less as compared to the other advanced nations. Family Courts should also have a proper infrastructure so as to provide a safe and family-friendly environment.
  • Non-recognition of ADR: ADR quite often is not considered to be a judicial process. Changing the conception of people over it would prove to be a challenge. ADR is usually resorted as a means by the upper-income class group and therefore, the lower-income and backward classes have no idea about it.
  • Lack of Legislation laying down Qualifications: In India, there exists a lack of law which would provide the necessary qualifications that one should have in order to qualify as a mediator, arbitrator etc. This hinders the trust of people upon the ADR mechanism and poses a threat to the future of the same.
  • Unfruitful when parties are not at talking terms: Another problem arises when both parties don’t want to communicate, leaving the process an unfruitful one and a waste of time. ADR does not prove to be helpful in such scenarios and a solution for the same has to be found out to increase the use of it while solving family disputes.
  • Lack of Knowledge: Moreover, choosing the right form of Alternative mechanism is a very crucial challenge as not all forms cater to the needs of every case, it depends largely on the matter of dispute. People don’t have knowledge about the same and quite a few times end up choosing the wrong type of alternative.
SUGGESTIONS
  • Establishment of More Family Courts: More and more family courts should be instituted in the country and the infrastructure of the same should be family-friendly, thus promoting peace of mind and a safe environment for children as well.
  • Social Awareness should be created: ADR is not recognized as a judicial method by the backward classes of the society. More legal aid campaigns and awareness drives should be conducted to educate people about the importance and benefits of ADR in resolving family disputes.
  • Standards and Qualifications should be laid: Standards for ADR should be laid down to make the process more fruitful and without any hindrances. Qualifications of the Mediators, arbitrators, etc should also be specified to gain public trust and confidence in the justice providers. Any form of ADR must be made compulsory before approaching the courts with matrimonial disputes; this would thus help in increasing the chances of reconciliation between the couple.
  • Need for establishing Safeguards: Safeguards should be implemented in all cases proposed for ADR “checking their suitability before sending them to private resolution mechanisms”[10]. This would help in ensuring that the right mode of dispute resolution has been selected, thus increasing the chances of reaching an effective resolution.
CONCLUSION

Since ADR is a developing field and adds a personal touch to the matters, it is a fruitful mechanism in resolving Family disputes. It should be encouraged more to decrease the backlog and increase the reach of justice. Awareness campaigns should be conducted to spread awareness about the benefits of ADR in family disputes.

ADR gives a chance to put forth confidential information which one usually won’t disclose in a room full of people, thus helping in finding an effective solution to the problems and in maintaining the confidentiality of the process. Further, the lack of precedents acts as a coin and has both its boons and its curse. On one hand, the lack of precedents helps to find an effective solution catering to the needs of the parties, on the other, there does not exist any appeal system in the same thus finalizing the order at once.

ADR thus helps our Indian culture of maintaining secrecy in household disputes by providing an effective way to work things out. It is the future of Family disputes as it provides a win-win situation to both parties rather than a decision that might not help fulfil the needs of both parties.

FOOTNOTES

[1] The Arbitration and Conciliation Act, 1996, Act No. 26, Acts of Parliament, 1996.

[2] United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration 1985: with amendments as adopted in 2006 (Vienna: United Nations, 2008), https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf

[3] The Code of Civil Procedure, 1908, Act No. 5, Acts of Parliament, 1908.

[4] Anil Malhotra & Ranjit Malhotra, Alternative Dispute Resolution in Indian Family Law- Realities, Practicalities, and Necessities, International Academy of Family Lawyers, https://www.iafl.com/media/1129/alternative_dispute_resolution_in_indian_family_law.pdf (last visited June 9, 2020).

[5] The Hindu Marriage Act, 1955, Act No. 25, Acts of Parliament, 1955.

[6] The Special Marriage Act, 1954, Act No. 43, Acts of Parliament, 1954.

[7] The Family Courts Act, 1984, Act No. 66, Acts of Parliament, 1984.

[8] Preamble, The Family Courts Act, 1984, Act No. 66, Acts of Parliament, 1984.

[9] Jagraj Singh v. Birpal Kaur, AIR 2007 SC 2083.

[10] Kevin Gibson, Promises and Problems In alternative Dispute Resolution for the Elderly, 2(3) Marquette Elder’s Advisor (2001).

DISCLAIMER: The opinions and views mentioned are that of the authors and do not necessarily reflect that of Katcheri.in.

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