JAMIA MILLIA ISLAMIA

Role of ADR in Matrimonial Dispute

PRANAV SHRIVASTAVA
B.A.LL.B
VII SEM (S.F)
2017-22 BATCH
 Content

 Abstract
 Introduction
 The Indian Arbitration and Conciliation Act, 1996
 . Settlement of disputes outside the Court
 ADR methods to marriage disputes
 Mediation
 Mediation under legislation
 History of Mediation in india
 Collaborative Divorce
 Arbitration
 Lok Adalats
 Negotiations
 Mediation in Domestic violence
 Family Courts
 Benefits of Alternative Dispute Resolution
 Case law
 Conclusion
 CERTIFICATE

The project entitled “Role of ADR in matrimonial case" submitted to

Faculty of Law, Jamia Millia Islamia for Clinical course, as part of
internal assessment is based on my original work carried out under the
guidance of Dr. Karishma sheikh mam from July to November, 2020. The
research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the thesis has
been duly acknowledged. I understand that I myself could be held
responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate

Date: 30 october, 2020
 ABSTRACT

Marriage is a union entered into by two parties in every jurisdiction i.e, marriage
is a universal occurrence. Although the legal process involved (either in formality
or requirement) varies from one jurisdiction to another, marriage is often
characterized by disputes which range from divorce to custody of children,
maintenance e.t.c Marriage, as examined in this context, is limited to that
conducted under statutes.

In resolving these disputes, recourse is made to adjudication. But overtime,

various shortcomings are being found for litigation. These include unnecessary
delay caused by congestion of court, high cost of litigation, confrontational nature
of litigation amongst others. Employing the Matrimonial Causes Act, this research
presents an outlook of litigation in resolving marriage disputes and also points out
its shortcomings.

Consequent upon the shortcomings found for litigation, various alternatives to

litigation are being come up with. This research, in line with resolving matrimonial
disputes, focuses on examining few of these alternatives which are collaborative
divorce, divorce mediation and divorce arbitration. In examining these
alternatives, this research points out the advantages they have over litigation in
their application to marriage disputes and these amongst others include
promotion of confidentiality, cost and time saving. The challenges facing the use
of these alternatives which include inadequate skills, lack of enforcement e.t.c.
are also examined.
 ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone who supported me

throughout the course of this project. I am thankful for their aspiring guidance,
invaluably constructive criticism and friendly advice during the project work. I am
sincerely grateful to them for sharing their truthful and illuminating views on a
number of issues related to the project.

I express my warm thanks to Karishma sheikh mam for his support and guidance
at Jamia millia islamia

Thank you,

Pranav shrivastava
B.A. LL.B. (Hons.)
 Table of cases

 Gaurav Nagpal vs. Sumedha Nagpal case (2009)

 Salem Advocates Bar Association vs. Union of India
 Jagraj Singh vs. Birpal Kaur case
 Ramgopal and Anr. vs. State of M.P

 B.S. Joshi & Ors. vs. State of Haryana & Anr

 INTRODUCTION

DISCOURAGE LITIGATION. Persuade your neighbors to compromise whenever you

can. Point out to them how the nominal winner is often really a loser — in fees,
expenses and waste of time. As a peacemaker, the lawyer has a superior
opportunity at being a good man. There will still be business enough. Abraham
Lincoln 1850

Marriage is a universal institution which is recognized and respected in various

jurisdictions, though the legal formalities of statutory marriage may be different.
Besides the general view that marriage is a social institution from which societies
are formed, it is also a union sanctified by God and may probably be termed
sacred.

If marriage is thus viewed in the above form, it will be devastating to the parties
involved in a marriage, their children and the society at large, if the marriage is
dissolved. It is not the intention of the writer to encourage dissolution of marriage
or separation of parties to it. The writer is only of the opinion that where there are
issues and strives in a marriage and the best solution, having tried other means, is
divorce or separation, parties should not hesitate to do such if they are satisfied
with it. It should be noted that where divorce or separation is resorted to, issues
of maintenance of parties and their children and custody of children also spring
up.

However, where divorce or separation proceedings are instituted in court, parties

emotional status, before, during and after the proceedings are not taken care of
Besides, the adversarial nature of the proceeding and the delay accompanied with
it often worsen parties’ emotional health not to talk of the children who
experience shame and instability because of lack of confidentiality in the
proceeding. These, amongst others, had led to the intervention of alternatives to
litigation.

The use of these alternatives, called, Alternative Dispute Resolution, has been
thriving well in the areas of shortcomings of litigation. For the purpose of this
research, collaborative divorce, divorce mediation and divorce arbitration,
Mediation are the only alternatives examined. Employing these alternatives in
marriage disputes (divorce and separation) is a more dignified way of making
couples, their children and their finances emerge healthy. This is because
emotions are properly taken care of; parties discuss their issues in a friendly
atmosphere rather than employing an adversarial approach as witnessed in
litigation. These and many more are obvious indications that alternative dispute
resolution has been covering up for litigation in the latter’s areas of shortcomings.

However, there are some challenges facing the application of the named
alternatives to marriage disputes and which may jeopardize their effectiveness or
bestride the reasons behind their inception. For instance, in a situation where the
final outcome of an ADR session is not complied with due to lack of enforceability
facing ADR (aside arbitration), efforts of the parties and the neutral third party
becomes futile since the decision is not binding as experienced in some
jurisdictions. Also, there is the challenge of inadequacy in the number of skilled
personnel and training centers/facilities. For instance at the moment in India,
there are only few private organizations that provide training services and
resources on ADR and none is statutorily created. The training these organizations
will provide will be little compared to what will be provided if government were
to intervene.

ADR is not a recent phenomenon as the concept of parties settling their disputes
themselves or with the help of third party, is very well-known to ancient India.
Disputes were peacefully decided by the intervention of Kulas (family assemblies),
Srenis (guilds o men of similar occupation), Parishad, etc., The primary object of
ADR movement is avoidance of vexation, expense and delay and promotion of the
ideal of “access of justice” for all. ADR system seeks to provide cheap, simple,
quick and accessible justice. ADR is a process distinct from normal judicial
process. Under this, disputes are settled with the assistance of third party, where
proceedings are simple and are conducted, by and large, in the manner agree3d
to by the parties. ADR stimulates to resolve the disputes expeditiously with less
expenditure of time, talent money with the decision making process towards
substantial justice, maintaining to confidentiality of subject matter.

It is believed that the development of the country can be also understood by

observing the capability of its legal system to render effective justice. The practice
of amicable resolution of disputes can be traced back to historic times, when the
villages’ disputes were resolved between members of particular relations or
occupations or between members of a particular locality. In rural India, the
‘panchayats’ (assembly of elders and respected inhabitants of the village) decided
nearly all the disputes between the residents of the village, while disputes
between the members of a clan continued to be decided by the elders of the clan.
These methods of amicable dispute resolution were recognized methods of
administration of justice and not just an “alternative” to the formal justice system
formed by the sovereigns, feudal lords or the adalat systems initiated by the
British and the formal court system. The two systems continued to function
analogous to each other. The process followed by the traditional institutions was
that of arbitration and conciliation, depending on the character of dispute. In
India, there is a massive legal system comprising nearly 15,000 courts across the
country. It is the constitutional obligation of the judiciary to exercise its
jurisdiction to reaffirm the faith of the people in the judicial set up. Therefore,
evolution of new juristic principles for dispute resolution is not only important but
imperative. In India the need to evolve alternative mechanisms simultaneous with
the revival and strengthening of traditional systems of dispute resolution has
been reiterated in reports of expert bodies1 . Each of these reports saw the
process of improving access to justice through legal aid mechanisms and
alternative dispute resolution (ADR) as a part of the systemic reform of the
institution of the judiciary coupled with substantive reforms of laws and
processes

The Indian Arbitration and Conciliation Act, 1996

The above is a generalized list of statutory enactments which govern the arena of
Indian dispute resolution by finding expression in different words under separate
laws. Arbitration generally is now a prevalent practice in the Indian civil
jurisdiction. Because of the significant backlog of cases in courts in India, there
was a dire need for effective means of alternative dispute resolution. India’s first
enactment on arbitration was The Arbitration Act, 1940. Other supporting
legislations were The Arbitration [Protocol and Convention] Act of 1937 and the
Foreign Awards Act of 1961. Arbitration under these laws was never effective and
led to further litigation as a result of rampant challenge of the awards rendered.
The Indian Legislature thus enacted the existing current Arbitration & Conciliation
Act, 1996 to make arbitration, domestic and international both, more effective in
India. The act is based on the UNCITRAL Model Law (as recommended by the U.N.
General Assembly) and facilitates International Commercial Arbitration as well as
domestic arbitration and conciliation. Under the above 1996 Act, an arbitral
award can be challenged only in the manner prescribed and on limited grounds.
The 1996 Act also restricts court intervention in arbitration proceedings to
minimal interference. India is party to the New York Convention of 1958 on the
Recognition and Enforcement of Foreign Arbitral Awards. As the name of the act
suggests, it also covers conciliation, which is a form of mediation. Accordingly,
arbitration is a popular mode of dispute resolution in civil disputes and
commercial agreements invariably contain an arbitration clause

Settlement of disputes outside the Court

A family lays the foundation for a society and therefore marriage, being one of
the key relationships in a marriage forms the building block of a civilization. In the
primitive times, the concept of marriage began as a sacrament. Marriage, as a
sacrament necessarily implied a sacrosanct, eternal and indissoluble union.
Among Hindus, marriage is a necessary samskar; every Hindu must marry. It was
considered to be very significant specially for the purposes of procreation of off-
springs. Therefore, if there is a breakdown of a marriage, it leads to grave
repercussions on a family which further requires an adjustment of relations,
essentially disrupting the peace and harmony of the family. Henceforth, our
personal laws and the Courts encourage the parties involved in matrimonial
disputes to go for reconciliation and settlement by an amicable agreement
instead of an arduous litigation battle.

Now, mediation is a settlement process in which a mediator is appointed by

either a person or the courts who helps both the parties to reach an amicable
agreement that is responsive to their needs and agreed upon by both sides.
According to Section 16 of the Civil Procedure Alternative Dispute Resolution and
Mediation Rules, 2006, the role of a mediator is to facilitate voluntary dispute
resolution of parties and convey the view of one party to the other, help them in
identifying issues, reducing misunderstandings, clarifying priorities and exploring
areas of compromise.

There are several provisions in a plethora of legislation which expressly provide

for conciliation and settlement before litigation.

Section 89 of the Code of Civil Procedure empowers the civil courts to refer
matters to Alternate Dispute Resolution (ADR). However, as per the provisions of
this section, consent of both the parties is a pre-requisite in order to refer the
case for ADR and this is a crucial issue as it can be observed in most matrimonial
disputes that one of the parties is a non-consenting party.

As per the provisions of sections 23(2) and 23(3) of Hindu Marriage Act, 1950 and
sections 34(3) and 34(4) of Special Marriage Act, 1954, the Courts are directed to
make an endeavour to bring reconciliation between the parties seeking a divorce
according to the facts and circumstances of a case.

Section 9 of the Family Courts Act, 1984 expressly lays down the duty of Family
Courts to persuade the parties to come at a settlement.

Civil Procedure-Mediation Rules, 2003 have introduced mandatory mediation

which empowers the Courts to send matters for mediation even when both
parties have not consented to it, when there is a scope for reconciliation and the
relationship between the parties is such that it needs to be preserved like
matrimonial disputes.

From the aforesaid statutes, it can be observed that motive of Indian law is the
preservation of marriage and therefore, courts are obliged to refer matters for
reconciliation and settlement whenever there’s scope for settlement.

A divorce has a magnanimous impact on the lives of the parents and their
children. The role of the mediator is to emphasize the mental agony and trauma
that a child would have to face on account of the breakdown of marriage of
his/her parents and advise the parents to analyze all the consequences of their
decision. After the mediator has communicated all the possible repercussions to
the parties, the mediator should ask them to take the final call.

Where it appears to the court that there exist elements of a settlement which
may be acceptable to the parties, the court shall formulate the terms of
settlement and give them to the parties for their observations and after receiving
the observation of the parties, the court may reformulate the terms of a possible
settlement and refer the same for-

(a) Arbitration

(b) Conciliation

(c) Judicial settlement including settlement through Lok Adalat

(d) Mediation.

A perusal of Section 89 CPC quoted above clearly spells out the statutory modes,
mechanisms, machinery and procedure provided and stipulated for alternative
modes of dispute redressal in all matters of civil litigation in India.

ADR METHODS TO MARRIAGE DISPUTES

The word alternative means something that can be used instead of something
else1. As earlier noted, there are some shortcomings found for adjudication in
resolving marriage disputes and these shortcomings serve as propellers to finding
substitutions. The difficulties posed by litigation to the litigants in gaining access
to justice, coupled with the overburdened courts with little facilities to attend to
matters with the deserved alacrity; formalism, legalism and excessive costs, are
some other factors that have led to the quest for alternatives to the traditional
court system (litigation). Since the court process seems to be cruel, anachronistic
and hypocritical2, there had to be a better way out. The Family Court Act, 1984 was
enacted to provide for the establishment of Family Courts with a view to promote

1
Longman Dictionary of contemporary English, 3rd Edition

2
Stephen M. C., ‘Divorce Reform in England: Humbug and Hypocrisy or Smooth Transition’, in Michael Freeman
(ed), ‘Divorce: Where Next?’ Dartmouth Publication Ltd p 41
conciliation in, and secure speedy settlement of, disputes relating to marriage and
family affairs and for matter connected therewith by adopting an approach
radically different from that ordinary civil proceedings. [K.A.Abdul Jalees v.
T.A.Sahida (2003) 4 SCC 166].Section 9 of the Family Courts Act, 1984 lays down
the duty of the family Court to assist and persuade the parties, at first instance, in
arriving at a settlement in respect of subject matter. The Family Court has also
been conferred with the power to adjourn the proceedings for any reasonable
period to enable attempts to be made to effect settlement if there is a reasonable
possibility. Section 80(1) of Code of Civil Procedure lays down that no suit shall be
instituted against government or public officer unless a notice has been delivered
at the government office stating the cause of action, name, etc. The object of
Section 80 of CPC – the whole object of serving notice u/s 80 is to give the
government sufficient warning of the case which is of going to be instituted
against it and that the government, if it so wished can settle the claim without
litigation or afford restitution without recourse to a court of laws. [Ghanshyam
Dass v. Domination of India, (1984) 3 SCC 46]. The object of s.80 is to give the
government the opportunity to consider its or his legal position and if that course
if justified to make amends or settle the claim out of court. - [Raghunath Das v.
UOI AIR 1969 SC 674] Order 23 Rule 3 of CPC is a provision for making an decree
on any lawful agreement or compromise between the parties during the
pendency of the suit by which claim is satisfied or adjusted. The scheme of Rule 3
of Order 23 proves that if the court is satisfied that a suit has been adjusted
wholly or partly by and lawful agreement or 8 compromise, the court shall pass a
decree in accordance to that. Order 23, Rule 3 gives mandate to the Court to
record a lawful adjustment or compromise and pass a decree in term of such
compromise or adjustment. Order 27 Rule 5B confers a duty on court in suit
against the government or a public officer to assist in arriving at a settlement. In a
suit where Government or public officer is a party it shall be the duty of the Court
to make an endeavor at first instance, where it is possible according to the nature
of the case, to assist the parties in arriving at a settlement. If it appears to the
court in any stage of the proceedings that there is a reasonable possibility of a
settlement, the court may adjourn the proceeding to enable attempts to be made
to effect settlement. Order 32A of CPC lays down the provision relating to “suits
relating to matter concerning the family”. It was felt that ordinary judicial
procedure is not ideally suited to the sensitive area of personal relationships.
Litigations involving affairs of the family seem to require special approach in view
of the serious emotional aspects involved. In this circumstances, the objective of
family counseling as a method of achieving the object of preservation of family
should be kept in forefront. Therefore, Order 32A seeks to highlight the need for
adopting a different approach where matters concerning the family are at issue,
including the need for effort to bring about amicable settlement. The provisions
of this Order applies to all proceedings relating to family, like guardianship,
custody of minor, maintenance, wills, succession, etc., Rule 3 imposes a duty on
the Court to make an effort of settlement by way of providing assistance where it
is possible to do so. The Court may also adjourns the proceeding if it thinks fir to
enable attempt to be made to effect a settlement where there is a reasonable
possibility of settlement. In discharge of this duty Court may take assistance of
welfare expert who is engaged in promoting the welfare of the family. [Rule 4]
The concept of employing ADR has undergone a sea change with the insertion of
S.89 of CPC by amendment in 2002. As regards the actual content, s.89 of CPC
lays 9 down that where it appears to the court that there exists element of
settlement, which may be acceptable to the parties, the Court shall formulate the
terms of the settlement and give them to the parties for their comments. On
receiving the response from the parties, the Court may formulate the possible
settlement and refer it to either:- Arbitration, Conciliation; Judicial Settlement
including settlement through Lok Adalats; or Mediation. As per sub-section (2) of
Section 89, when a dispute is referred to arbitration and conciliation, the
provisions of Arbitration and Conciliation Act will apply. When the Court refers
the dispute of Lok Adalats for settlement by an institution or person, the Legal
Services Authorities, Act, 1987 alone shall apply. Supreme Court started issuing
various directions as so as to see that the public sector undertakings of the
Central Govt. and their counterparts in the States should not fight their litigation
in court by spending money on fees on counsel, court fees, procedural expenses
and waiting public time. (see Oil and Natural Gas Commission v. Collector of
Central Excise, 1992 Supp2 SCC 432, Oil and Natural Gas Commission v. Collector
of Central Excise, 1995 Supp4 SCC 541 and Chief Conservator of Forests v.
Collector, (2003) 3 SCC 472). In ONGC v. Collector of Central Excise, [1992 Supp2
SCC 432],[ ONGC I] there was a disputes between the public sector undertaking
and GOI involving principles to be examined at the highest governmental level.
Court held it should not be brought before the Court wasting public money any
time. In ONGC v. Collector of Central Excise, [1995 Supp4 SCC 541] (ONGC II)
dispute was between govt. dept and PSU. Report was submitted by cabinet
secretary pursuant to SC order indicating that instructions has been issued to all
depts. It was held that public undertaking to resolve the disputes amicably by
mutal consultation in or through or good offices empowered agencies of govt. or
arbitration avoiding litigation. GOI directed to constitute a committee consisting
of representatives of different depts. To monitor such disputes and to ensure that
no litigation comes to court or tribunal without the Committee’s prior
examination and clearance. The order was directed to communicate to every HC
for information to all subordinate courts.

Various alternatives have truly come up and are applied to issues ranging from
business to matrimony. This chapter examines three alternatives/ADR methods
which are mediation collaborative divorce, divorce mediation and divorce
arbitration.

The Supreme Court in the Gaurav Nagpal vs. Sumedha Nagpal case
(2009)3emphasised that efforts should be made to bring about conciliation to
bridge communication gaps to prevent people from rushing to courts. The
pressing need in the current social milieu is to create an infrastructure machinery
for alternative disputes resolution (ADR) mechanisms. Particularly, marriages
solemnized in India and fractured abroad in the 30-million NRI community can be
mended and settled. It is these limping unions which need reconciliatory formulas
in India to prevent them from being split. Conflicts arising locally or overseas
should not deteriorate into other ancillary issues multiplying the problem

3
 (2009) 1 SCC 4
 MEDIATION

Where does mediation fit in the divorce process? Webster defines mediation as
the "intercession of one power between other powers at their invitation or
consent to arrange amicably differences between them." Thus, the two
individuals contemplating divorce could seek jointly the help of one or more
"mediators" to help the couple to arrange amicably for a settlement of all of the
issues with which they find themselves confronted.

The couple involved in the divorce mediation may need more than one mediator
to help them arrive at a mutually acceptable agreement. Different people have
different needs. One's emotional or social issues are best handled by mental
health mediators such as psychiatrists, psychologists or social workers. Financial
issues are best dealt with by specially trained mediators such as accountants,
financial planners and possibly lawyers. Legal issues are best dealt with by
attorney-mediators.

This "mediation team approach" effectively enables a couple to have what might
be called a successful or positive divorce. Whatever particular problem or issue
needs resolving by the couple can be worked on by the expert-mediator most
particularly suited to that type of problem.

One may ask, however: "How can one attorney properly help two people with
"conflicting interests?" The New York Court of Appeals in Levine v. Levine 4 , firmly
held that a couple has the absolute right to utilize the services of one attorney to
work out the terms of their agreement. It is clear from that case and others that
as long as each individual knows their rights, and knows the implications of their
4
451 NYS2d (1982)
agreement, that they are each free to agree on whatever terms for their
separation or divorce settlement agreement that they wish to.

Furthermore, when a couple decides to get divorced, it does not necessarily mean
that they have "conflicting interests."They could have conflicting interests if that
is what each wishes to pursue; namely, conflicting legal position.

However, if the couple resolves the often unresolved emotional or social issues,
then they may have a united interest; namely, that they terminate their marriage
legally, fairly and in a way such that each of the participants and everyone else in
the family and society wins.

Win/Win agreements are possible especially where each of the participants is

interested in arriving at a win/win solution as opposed to a "you or me" solution.
In the area of conflict resolution, it can be said that there are three levels of
relationship in which people can operate:"you or me," "you and me," and "we." In
the "you or me" domain, each of the participants is looking for what is best for
them, without regard to what the other wants or needs; namely, a win/lose
situation. In the "you and me" way of relating, each of the people is interested in
going their separate ways, but each is also interested in the other's winning as
well. In the "we" domain, the couple would be going in the same direction with a
unified effort. Mediation can take place where the couple learns how to solve
problems in a "you and me" or "we" frame of mind. This method of problem
solving can be taught to the couple by the mediator.

Once a couple receives the proper guidance from a trained mediator, shifts in the
way each participant relates to the other and to the divorce as a whole, occurs.
With the appropriate mediator's help, the couple would be able to come up with
various win/win alternatives so that an agreement can be arrived at which
benefits everyone.

Contrast this with the "you or me" approach in which each person would seek
what is best for them and would seek to minimize what the other person gets.
This is typical of the adversarial context where each party hires a separate
attorney whose role is to get as much for his/her client as possible —often at the
expense of the other spouse.

For those who share the school of thought that an attorney is always necessary
for each party, mediation can still be a beneficial process. Indeed, the couple can
agree to mediate, with or without attorneys present at the mediation sessions,
and the process can continue until an agreement is reached; this agreement can
then be finalized by the separate attorneys.

At every stage of this mediation proceeding, each party can be advised by their
respective attorneys of their rights and the ramifications of each decision. In this
way, the adversarial nature of the litigation process can be avoided, and the client
can be "represented" by separate attorneys at every step. This model may be the
best since it is the best of both worlds; the clients are moving forward in as
amicable a way as possible, and their "conflicting interests" (if any) are being
carefully monitored by their respective attorneys.

Mediation under Legislation

Legislations and Legislative provisions related to settlement of matrimonial

dispute are Hindu Marriage Act, 1955, Special Marriage Act, 1954, Family Court
Act, 1984, Civil Procedure Code, 1908, Legal Service Authority Act, 1987. sThe
concept of resolution of dispute through arbitration, mediation, conciliation and
negotiation was institutionalized by Legal Services Authority Act. The said Act39
provides for holding Lok Adalats where disputes are pending in courts of law. The
concept of family Court implies an integrated broad based service to families in
trouble, to preserve the family and to help stabilize the marriage. The family
Court system visualizes laying down a less formal procedure, where legal
technicalities and technical procedures are not to be followed, to do away with
the traditional adversary or fault oriented approach. The aim should be to provide
dignified means for parties to reconcile their differences and to reach amicable
settlements without the need for trial; help avoid frivolous litigation; encourage
pre-trial negotiation and settlement. The main object of the Act40 to provide for
the establishment of Family Courts with a view to promote conciliation in and
secure speedy settlement of disputes relating to marriage & family affirms and for
the matters there with. Though the Family Courts Act, 1984 was conceptualised
within a simplistic premise of speedy settlement or reconciliation, currently in
metropolitan cities, the litigation has become extremely contested and involves
high economic stakes. Matrimonial litigation in metropolitan cities is becoming
extremely complex and extends far beyond the premise of speedy settlement or
reconciliation41. Matrimonial disputes particularly those relating to custody of
child, maintenance, etc. are pre eminently fit for mediation. Section 942 of the
Family Courts Act enjoins upon the Family Court to make efforts to settle the
matrimonial disputes and in these efforts, Family Courts are assisted by
Counsellors. Even if the Counsellors fail in their efforts, the Family Courts should
direct the parties to mediation centres, where trained mediators are appointed to
mediate between the parties
 History of Mediation in India

Mediation is a process of resolving disputes between parties outside the court of

law. The concept of mediation/conciliation received legal recognition for the first
time through the Industrial Disputes Act, 1947.

The conciliators were appointed in accordance with Section 4 of this act and they
were given the duty to mediate/conciliate and promote the settlement of
industrial disputes through the process of mediation so as to save the time of the
court and that of the parties as well. It creates a win-win situation for both the
parties to the disputes and also saves their money. The act also prescribes the
detailed procedure for conciliation. The process of mediation and conciliation
employs the same techniques and strategies in practice.

The idea of parties settling their disputes outside the court of law, i.e. the
judiciary, was very well known and prevalent in the Ancient India as well.
Specifically talking about Arbitration, it was recognized as a dispute resolution
process in 1879 and it was also included in the Civil Procedure Code of 1908.

The provision for arbitration that was given under Section 89 of the Civil
Procedure Code was repealed when the Arbitration Act came into force and late
court-annexed ADR was reintroduced by way of amendment to CPC in 2002.
Further, with the enactment of the The Legal Services Authority Act, 1987, the
following duties were vested with the National Legal Services Authority as a
central authority with the Chief Justice of India as its chief.
To encourage the settlement of disputes outside the court of law by way of
negotiations, arbitration and conciliation.
To conduct research and surveys in the field of legal services relating to the
resolution of disputes through mediation.
To lay down policies and principles for making legal services available for
everyone.
To conduct legal training and educational programmes in various law colleges and
other institutions with affiliation to the Bar Council of India in order to spread
awareness about the process of mediation so as to help them realize that going to
the courts is not the only solution in case of any disputes and that there are
alternatives for the same, such as, arbitration and conciliation, i.e. mediation
procedure.
To frame out most effective schemes for the purpose of spreading awareness
about the concept of mediation.

Later, the Arbitration and Conciliation Act, 1996, made much more elaborate and
effective provisions for settlement of disputes arising out of a legal relationship,
whether contractual or not through arbitration and conciliation. The act provided
for the commencement of the conciliation proceedings, appointment of
conciliators and their duties and assistance of suitable institution for the purpose
of recommending and appointing conciliators, and most importantly the
conciliation settlement agreement was given the status equivalent to the degree
of a civil court. The act also specified the role of conciliators in assisting the
parties to the dispute to arrive at an amicable settlement.
In 1999, the Civil Procedure Code Amendment of 1999 again inserted Section 89
(which was repealed earlier) providing for reference of cases pending in the
courts to Alternative Dispute Resolution methods, including the process of
mediation. This amendment was enforced on July 2, 2002.

COLLABORATIVE DIVORCE

Collaborative divorce (also called collaborative law, collaborative practice and

collaborative family law) is a voluntary and facilitative family law process,
enabling couples who have decided to end their marriage, to work with their
lawyers and other family professionals, in order to achieve a settlement that best
meets the specific needs of both parties and their children, thus, avoiding the
uncertain outcome of the court. This process is initiated when couples voluntarily
sign a contract (Participation Agreement) binding each other to the process and
disqualifying their lawyers to represent either of them in any future family related
litigation.

This alternative was created in 1990 by a Minnesota Family Lawyer, Stuart Webb, 5
who saw that traditional litigation was not always helpful to parties and their
families and was often damaging. Since 1990, the collaborative law movement
has spread rapidly to most of the United States, Europe, Canada and Australia. It
was launched in England in 20036. ADR methods, collaborative law inclusive, have
5
‘Collaborative Law History’, <http://www.collaborativedivorce.net/history-of-collaborative-divorce/ >accessed
on 15th March 2012

6
Collaborative Practice in England’, <https://www.collaborativepractice.com/_t.asp?M=7&T=PracticeGroups>
been incorporated in Texas Family Code7 and the code provides that parties to
dissolution of marriage may agree with their attorneys in an agreement, to
conduct the dissolution under collaborative law procedures without court
intervention. This growth of collaborative process has equally been encouraged in
England and Wales by the judiciary and its family lawyers’ organization
(Resolution).8 In 2008, it was reported that Justice Coleridge, a High Court Judge
of the Family Division, had promised that collaborative law would be fast tracked
in England and Wales9.

As part of the collaborative law process, both parties retain separate attorneys
and jointly hire other family law experts (mental health professional, child
specialist and financial specialist) whose job is to settle the dispute, making use of
team approach. Each party to the dispute signs an agreement called Participation
agreement, which includes following terms:

• No Court/Litigation: this is to the effect that neither party may seek or threaten
court action to resolve the dispute. However, if the process fails and parties
decide to litigate the dispute, the attorneys must withdraw and the parties must
retain new lawyers. This is called ‘disqualification provision’. The provision adds a
necessary element of trust to the participants, thereby enhancing the likelihood
of resolution. Attorneys will want to ensure that the dispute get resolved without
making recourse to court and thus learn additional skills that may be needed to
resolve the dispute.

7
Texas Family Code, 2005 Chapter 6 Subchapter G § 6.603

8
‘Resolution-Alternatives to Court’, <http://www.recolution.org.uk/editorial.asp?page_id=53>
9
Rozenberg Joshua, ‘Fast –track Separations for Couples Who Agree’ Daily Telegraph Newspaper. (London 20
October2008) <http://www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/3197556/fast-
trackseparations-for-couples-who-agree.html>
• Disclosure of Documents/Information: though this is also required in litigation,
such litigation is limited to what should be disclosed under rules. In collaborative
law however, each party agrees to honestly and openly disclose all documents
and information relating to the dispute. Also, neither party may take advantage of
a miscalculation or an inadvertent mistake of the other.

• Win-Win Solutions: it is agreed that the primary goal of the process will be to
work toward an amicable resolution wherein no one loses or is pointed at as
guilty. A win-win situation is created for both parties.

• Sharing Experts: it is agreed that experts will be neutral and hired jointly by both
parties.

• Respect and Insulation of Children: the concept of respect, i.e, behaving in a

courteous manner, will help foster a smooth future relationship. By insulating the
children from the process, the impact of the divorce on them will be minimized.

ARBITRATION

Arbitration has a long history in India. In ancient times, people often voluntarily
submitted their disputes to a group of wise men of a community—called the
panchayat—for a binding resolution.

If mediation is not possible, binding arbitration is the next best thing. In an

arbitration, the parties can set their own rules with regard to disclosure,
presenting evidence, expert testimony, and the like. The entire process can be
expedited, "informalized" and streamlined so that what the people really want (a
quick, fair and inexpensive resolution) can be obtained. The parties and their
attorneys are free to select an arbitrator (or arbitrators) of their choice, thus
assuring each party and their attorneys that the best possible person to make the
decision will be chosen. There are many organizations that maintain lists of
available arbitrators (as well as mediators) who are either retired judges or noted
mediators and arbitrators. ADR is becoming a fact of life. Abraham Lincoln said
"there will still be business enough." He was right. Matrimonial lawyers can
participate not only as litigators as we now do, but also as advisors to our clients
going through a divorce mediation or other ADR process.

Modern arbitration law in India was created by the Bengal Regulations in 1772,
during the British rule. The Bengal Regulations provided for reference by a court
to arbitration, with the consent of the parties, in lawsuits for accounts,
partnership deeds, and breach of contract, amongst others. Until 1996, the law
governing arbitration in India consisted mainly of three statutes: (I) the 1937
Arbitration (Protocol and Convention) Act, (ii) the 1940 Indian Arbitration Act, and
(iii) the 1961 Foreign Awards (Recognition and Enforcement) Act. The 1940 Act
was the general law governing arbitration in India along the lines of the English
Arbitration Act of 1934, and both the 1937 and the 1961 Acts were designed to
enforce foreign arbitral awards (the 1961 Act implemented the New York
Convention of 1958)10. The government enacted the Arbitration and Conciliation
Act, 1996 (the 1996 Act) in an effort to modernize the outdated 1940 Act. The
1996 Act is a comprehensive piece of legislation modeled on the lines of the
UNCITRAL Model Law. This Act repealed all the three previous statutes (the 1937
Act, the 1961 Act and the 1940 Act). Its primary purpose was to encourage
10
The New York Convention of 1958, i.e. the 1958 Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, is one of the most widely used conventions for recognition and enforcement of foreign awards. It
sets forth the procedures to be used by all signatories to the Convention. This Convention was first in the series of
major steps taken by the United Nation since its inception, to aid the development of international commercial
arbitration. The Convention became effective on June 7, 1959
arbitration as a cost-effective and quick mechanism for the settlement of
commercial disputes. The 1996 Act covers both domestic arbitration and
international commercial arbitration.

If mediation is not possible, binding arbitration is the next best thing. In

arbitration, the parties can set their own rules with regard to disclosure,
presenting evidence, expert testimony, and the like. The entire process can be
expedited, "informalized" and streamlined so that what the people really want (a
quick, fair and inexpensive resolution) can be obtained. Divorce arbitration can be
described as a ‘mini-trial’ or an informal litigation wherein divorcing couples
select a neutral third party, called an arbitrator, with family law experience to
hear their case and gives a final decision (award) having heard from both
sides.11The parties and their attorneys are free to select an arbitrator (or
arbitrators) of their choice, thus assuring each party and their attorneys that the
best possible person to make the decision will be chosen. There are many
organizations that maintain lists of available arbitrators (as well as mediators)
who are either retired judges or noted mediators and arbitrators.

The decision of a divorce arbitrator may be either binding or non-binding,

depending on what the parties choose. If the couples elect that the decision be
binding, that decision will then be made into a formal judgment. If the parties
elect that that the decision be non-binding or advisory, the parties can either
accept or reject the decision of the arbitrator. If they accept the decision, an
agreement to that effect will be entered into and decision will be made into a
formal judgment. If either party or both parties later reject the decision on
grounds that the arbitrator is partial and that the decision is made wrongly, an
11
http://www.singhania.com/arbitration-dispute-resolution-india/
appeal can be filed in the court of law. But if the end result is the same as the first
decision or is more favorable to the other spouse, the spouse who appeals may
be ordered to pay the other’s costs. Arbitrators, like mediators, are often called
upon when the divorce proceeding in court derails because the parties cannot
agree on one or more issues such as who should pay children’s maintenance or
who should be responsible for their custody.

One of the factors for determining arbitration as an effective legal institution is

the efficiency and efficacy of its award enforcement regime. Under Section 36 of
the 1996 Act, an arbitral award is enforceable as a decree of the court, and could
be executed like a decree in a suit under the provisions of the Civil Procedure
Code, 1908.

Arbitration in India is still evolving. One of the objectives of the 1996 Act was to
achieve the twin goals of cheap and quick resolution of disputes, but current
ground realities indicate that these goals are yet to be achieved.

Arbitration is generally considered cheaper over traditional litigation, and is one

of the reasons for parties to resort to it. However, the ground realities show that
arbitration in India, particularly ad hoc arbitration, is becoming quite expensive
vis-à-vis traditional litigation. A cost analysis on arbitration vis-à-vis litigation will
throw light on the higher cost of arbitration over litigation. This is a crucial factor
which weighs against developing a cost effective quality arbitration practice in
India.

LOK ADALATS
  The movement towards Alternative Dispute Resolution was endorsed by a
resolution at a meeting of Chief Ministers and Chief Justices held on 4.12.1993.
The meeting noted that the courts were not in a position to undertake the
entire burden of administration of justice and that a number of disputes were
capable of being disposed of by alternative methods such as arbitration,
conciliation, mediation and negotiations. It was further emphasized that
litigants should be encouraged to adopt other methods because they provided
procedural flexibility, saved valuable time and involved less expenditure and
strain as compared with conventional trials in civil courts.12

 The above said movement was recognized and supported by the Parliament.
The Legal Services Authorities Act, 1987 brought about the establishment of
the Lok Adalat system for settlement of disputes cheaply and expeditiously and
also in the spirit of compromise by give and take formula.

Section 30 of the Arbitration and Conciliation Act, 1996 encourages arbitrators

to use the mediation, conciliation or other procedures at any time during the
arbitration proceedings with the agreement of the parties to encourage
settlement.

The term 'Lok Adalat' means a people's court. Lok Adalat in stricter sense is not
a court of law. It is defined as a forum where voluntary effort aimed at bringing
about settlement of disputes between the parties is made through conciliatory
and pervasive efforts. The State Legal Aid and Advisory Boards or District Legal
Aid Committees organize Lok Adalats. The members of the Lok Adalat are
called as 'Conciliators'. The members may be drawn from serving or retired
judicial officers or from other fields of life. The number of members is to be
12
http://www.taxmanagementindia.com/wnew/print_Article.asp?ID=505
 determined by the organizing authority. Likewise the qualification and
experience required for the members have to be prescribed where the Lok
Adalat is organized by the Supreme Court Legal Services Committee, by the
Central Government in consultation with the Chief Justice of India. In other
cases, it has to be done by the State Governments in consultation with the
Chief Justices of the High Courts.

Alternative dispute resolution is, neatly, worked out in the concept of Lok
Adalat. It has provided an important juristic technology and vital tool for easy
and early settlement of disputes. It has again proved to be a successful and
viable national imperative and incumbency; guest suited for the larger and
higher section so the present society of Indian system. The concept of legal
services which includes Lok Adalat is a “revolutionary evolution of resolution of
disputes”. Lok Adalats provide speedy and inexpensive justice in both rural and
urban areas. They cater the need of weaker sections of society.

The object of the Legal Services Authority Act, 1987 was to constitute legal
service authorize is for providing free and competent legal services to the
weaker sections of the society; to organise Lok Adalats to ensure that the
operations of the legal system promoted justice on a basis of equal opportunity.
Under the Act permanent Lok Adalat is to set up for providing compulsory pre-
litigation mechanism for conciliations and settlement of cases relating to public
utility services.

The parties thereof agree or one of the parties thereof makes an application to
the court for referring the case to the Lok Adalat for settlement. The court if it is
satisfied that there are chances for settlement or if the court is satisfied that the
matter is an appropriate one to be taken cognizance of by the Lok Adalat the
court shall refer the case to Lok Adalat after giving reasonable opportunity of
being heard to the parties.

The award passed by a Lok Adalat shall be final and binding on all the parties to
the dispute. No appeal shall lie to any court against the award of Lok Adalat.
The award is deemed to be a decree of a civil court. Where no award is made by
the Lok Adalat on the ground that no compromise or settlement could be arrived
at between the parties, the record of the case shall be returned by it to the
court, from which the reference has been received. The court shall proceed to
deal with such case from the stage, which was reached before such reference.

Where the case was pending before the court so that the court fee had already
been paid and then it was resolved through the Lok Adalat, the court fee would
be refunded to the party in the manner provided under the Court Fees Act,
1870.

NEGOTIATION

Generally, negotiation is an interchange between two or more parties in an

attempt to reach a compromise. Negotiation is at the core of most Alternative
Dispute Resolution (ADR) processes. Traditionally, negotiation occurs directly
between the parties and their counsel and does not involve a neutral third party.
If the negotiations break down and/or reach an impasse, a third party may be
introduced creating a process of facilitated negotiation. Facilitated
negotiation tends to be a more ad hoc and informal process than mediation. In
negotiation, participation is voluntary and there is no third party who facilitates
the resolution process or imposes a resolution. ( a third party like a organizational
ombudsperson or social worker or a skilled friend may be coaching one or both of
the parties behind the scene, a process called "Helping People Help
Themselves".)Where does mediation fit in the divorce process? Webster defines
mediation as the "intercession of one power between other powers at their
invitation or consent to arrange amicably differences between them." Thus, the
two individuals contemplating divorce could seek jointly the help of one or more
"mediators" to help the couple to arrange amicably for a settlement of all of the
issues with which they find themselves confronted. The couple involved in the
divorce mediation may need more than one mediator to help them arrive at a
mutually acceptable agreement. Different people have different needs. One's
emotional or social issues are best handled by mental health mediators such as
psychiatrists, psychologists or social workers. Financial issues are best dealt with
by specially trained mediators such as accountants, financial planners and
possibly lawyers. Legal issues are best dealt with by attorney-mediators . Elements
of Successful Negotiation:

 Parties identify issues upon which they differ.

 Parties disclose their respective needs and interests.
 Parties identify possible settlement options.
 Parties negotiate terms and conditions of agreement.13

13
http://www.au.af.mil/au/awc/awcgate/army/jagcnet/adr-negotiation.pdf
 Mediation in domestic violence

One has to understand the fact that domestic violence is a serious crime and
should not be taken lightly. Some people believe that the courts are at fault
because of one simple criterion that they are accepting domestic violence as a
crime but taking a very casual approach towards it. It has given a sense of
leniency and made domestic violence sound a bit more casual and free. Domestic
violence being a crime, someone who has committed the crime can easily escape
from the same with the simple help of the mediation.

When it comes to cases like domestic violence the court should be careful with
whatever they are doing. Therefore, if the court is recommending mediation to
the parties then it has to take care of two things, that is, creating a bar for such an
unacceptable behaviour and second, it has to see the social aspects as well, be it
institution of family and children.

When parties approach the court there is always a win-lose situation but when it
comes to mediation there is always a win-win situation for both the parties. In the
mediation process the interests of both the parties are seen. And when it comes
to matrimonial disputes there are a lot of emotional and social concerns that are
involved. Sometimes it is just out of frustration that a party might just file FIR
instantaneously or it can simply be an impulsive act that both the parties might
have done. One has to understand the fact that domestic violence is a serious
crime and should not be taken lightly. Some people believe that the courts are at
fault because of one simple criterion that they are accepting domestic violence as
a crime but taking a very casual approach towards it. It has given a sense of
leniency and made domestic violence sound a bit more casual and free. Domestic
violence being a crime, someone who has committed the crime can easily escape
from the same with the simple help of the mediation.

When it comes to cases like domestic violence the court should be careful with
whatever they are doing. Therefore, if the court is recommending mediation to
the parties then it has to take care of two things, that is, creating a bar for such an
unacceptable behaviour and second, it has to see the social aspects as well, be it
institution of family and children.

When parties approach the court there is always a win-lose situation but when it
comes to mediation there is always a win-win situation for both the parties. In the
mediation process the interests of both the parties are seen. And when it comes
to matrimonial disputes there are a lot of emotional and social concerns that are
involved. Sometimes it is just out of frustration that a party might just file FIR
instantaneously or it can simply be an impulsive act that both the parties might
have done.
 FAMILY COURTS

The Family Courts Act, 1984 was part of the trends of legal reforms concerning
women. Because of the building pressure from various institutions lobbying for
the welfare of women all over the country, the Act was expected to facilitate
satisfactory resolution of disputes concerning the family through a forum
expected to work expeditiously in a just manner and with an approach ensuring
maximum welfare of society and dignity of women. Prevalence of gender biased
laws and oppressive social practices over centuries have denied justice and basic
human rights to Indian women. The need to establish the Family Courts was first
emphasized by the late Smt. Durgabai Deshmukh. After a tour of China in 1953,
where she had occasion to study the working of family courts, Smt. Deshmukh
discussed the subject with certain Judges and legal experts and then made a
proposal to set up Family Courts in India to Prime Minister Pt. Jawaharlal Nehru.

To this background, a significant development has been the recent setting up of

the Family Court in Delhi. Though such courts have been set up and are
functioning in other states, the setting up of a family court in the Capital is a
significant development and a step which was necessary to be taken. The main
purpose behind setting up these Courts was to take the cases dealing with family
matters away from the intimidating atmosphere of regular courts and ensure that
a congenial environment is set up to deal with matters such as marriage, divorce,
alimony, child custody etc. As mentioned earlier, an effective way of tackling the
problem of pendency is to improve the efficiency of the system rather than
changing the system altogether. A significant step is to make use of the available
human resource. These family courts at Delhi are equipped with counsellors and
psychologists who ensure that the disputes are handled by experts who do not
forget that while there may be core legal issues to be dealt with; there is also a
human and psychological dimension to be dealt with in these matters. The role of
the counsellors is not limited to counselling but extends to reconciliation and
mutual settlement wherever deemed feasible.

Procedure followed by the family courts- advantages of a conciliatory

approach. 

The Family Courts are free to evolve their own rules of procedure, and once a
Family Court does so, the rules so framed over ride the rules of procedure
contemplated under the Code of Civil Procedure. In fact, the Code of Civil
Procedure was amended in order to fulfil the purpose behind setting up of the
Family Courts.

Special emphasis is put on settling the disputes by mediation and conciliation. This
ensures that the matter is solved by an agreement between both the parties and
reduces the chances of any further conflict. The aim is to give priority to mutual
agreement over the usual process of adjudication. In short, the aim of these
courts is to form a congenial atmosphere where family disputes are resolved
amicably. The cases are kept away from the trappings of a formal legal system.
The shackles of a formal legal system and the regular process of adjudication
causes unnecessary prolonging of the matter and the dispute can worsen over
time. This can be a very traumatic experience for the families and lead to personal
and financial losses that can have a devastating effect on human relations as well.
This again points to the importance of having guidance counsellors and
psychological experts to deal with such matters.

Issues of concern- are the Family Courts functioning towards fulfilling their
purpose?

The Family Courts’ main purpose is to assist the smooth and effective disposal of
cases relating to family matters. However, like any other system there are certain
issues which become a matter of concern when it comes to the working of these
courts. One such issue is that of continuity. For example, in the family courts at
Tamil Nadu, the counsellors are changed every three months. Thus, when cases
stretch for a period of time which is longer than this, the woman or the aggrieved
person has to adjust with new counsellors and their story has to be retold several
times.

A major drawback of the Family Courts Act happens to be that it doesn’t explicitly
empower Courts to grant injunctions to prevent domestic violence. While there
has been progress, viz the enactment of the Protection of Women from Domestic
Violence Act, 2005 which now extends to punishing women for acts of violence as
well; there are still issues of jurisdiction to be tackled. It must be understood that
the Family Courts Act has to be read in totality i.e. in accordance with the
provisions in other laws, for example, the Civil Procedure Code on matters of
jurisdiction.

Since the Family Court has restrictive jurisdiction and does not have the power to
decide issues of contempt, people do not seem to take the court as seriously as
they would a magistrate or a city civil court. Further, it was laid down in the
Family Courts Act that the majority of judges should be women. However, this
provision has not been complied with. In the course of the workshop organised in
March 2002 by the National Commission for Women, it was noted that there
were only 18 women judges till then in the Family Courts in India out of 84 judges
in all the 84 courts that existed at that time

Government is empowered to make rules prescribing some more qualifications.

Apart from prescribing the qualification of the Judges of Family Courts, the
Central Government has no role to play in the administration of this Act. Different
High Courts have laid down different rules of the procedure. However, this lack of
uniformity could also be one of the reasons behind the fact that family disputes
are still being heard by civil courts. Family courts also need to align themselves
with women’s organizations and NGOs dealing with the welfare of families,
women and children.

Another matter of confusion is that the Act, by virtue of Section 13 provides that
the party before a Family Court shall not be entitled as of right to be represented
by a legal practitioner. However, the court may, in the interest of justice, provide
assistance of a legal expert as amicus curiae. This is an example of which the
objective behind the family court is defeated due to the procedural lapses. The
fact that the proceedings are conciliatory does not relieve them of the
complicated legal issues which may be involved in the family dispute. The
question is whether a lawyer's participation will be useful or detrimental to the
performance of a family court. That is the crucial issue. It was suggested at the
workshop that the Women's Commission should consider whether an
amendment could be proposed to allow participation of lawyers subject to a
proviso giving power to the court to terminate his vakalatnama if he uses delaying
tactics by unnecessary adjournments. If such control is given to the court the
lawyers will not be able to get adjournments. Further, a lay person may be totally
unaware of the legal jargon that invariably comes into play during the
proceedings.

Further, the substantive aspect of the law cannot be ignored because it is what
cases are made of. A practical example of a problem with the substantive law is
that many times, the husband in a divorce cases resorts to reconciliation mainly
because he wants to escape the responsibility of giving maintenance to his wife.

It is evident that the setting up of these family courts was a dynamic step so far as
reducing the backlog and disposing off cases while ensuring that there is an
effective delivery of justice goes. However, as aforementioned, there are still
matters of concern which plague these courts. The issues relating to the
functioning of these courts is to be seen in total, as quoted in the examples
relating to the procedural as well as substantive aspects of the problems. There
are many controversial and debatable issues such as engaging a lawyer due to the
specific provisions of the Family Courts Act.

Furthermore, the lack of uniformity regarding the rules laid down by different
states also leads to confusion in its application. Merely passing a central
legislation is not in itself a complete step; for implementation in its spirit, it is to
be ensured that some level of uniformity is maintained, at least in the initial
stages of its coming into effect. Further, the need to amend certain laws is also to
be examined and implemented effectively in order to ensure that these courts do
not face any hindrance in their working. These small steps, if examined and
implemented within time, will go a long way to ensure that the Family Courts are
successful, to a greater degree, to fulfil the noble purpose for which they were
created.

Case Law

 Ramgopal and Anr. vs. State of M.P.: In this case, certain cases which were
non-compoundable in Indian Penal Code like Section 498A were to be made
compoundable for the easy settlement of parties between themselves and
which would also shed some burden from the shoulders of the Judiciary

 B.S. Joshi & Ors. vs. State of Haryana & Anr

In this case the court held that criminal proceedings can be quashed at the
discretion of the High Court by the use of the power vested in the court
according to Section 482 of Criminal Procedure Code. It was an appeal
petition to the Supreme Court. The wife had lodged an FIR against the
husband and later, according to her, their relationship was fine and the FIR
was registered without thinking and impulsively. According to the Supreme
Court, courts should encourage reconciliation especially in the matrimonial
disputes of such kind.

 Salem Advocates Bar Association vs. Union of India

 The original case was Salem Advocates Bar Association, Tamil Nadu. v.
Union of India[14] and the abovementioned case was just an aftermath of
this case. It intends to reduce burden from the judiciary by reducing
number of suits filed in the court every year. This case looks upon a speedy
trial and administration of justice. Various rules and regulations were
drafted for the smooth functioning of alternative dispute resolution by the
committee set up by the court.

BENEFITS OF ALTERNATIVE DISPUTE RESOLUTION

Litigation does not always lead to a satisfactory result. It is expensive in terms of

time and money[1]. Its adversarial nature does not change the mindset of the
parties and ends up in bitterness. Alternative dispute resolution systems are not
only cost and time effective; they preserve the relationship between the parties
by encouraging communication and collaboration.

Maintenance of peace and harmony is the paramount consideration in resolving

family disputes. Conciliation and mediation are old institutions and indeed they
are deeply rooted in the social tradition of many societies, particularly in Asian
culture and values. In India, family disputes were resolved by the elders of the
family who acted as conciliators or mediators. Even today, elders of the family
and in villages, the elder persons of the village have such a role. Panchayats also
perform a similar function and are preferred by villagers over courts due to their
easy accessibility and prompt dispute resolution[2]. The philosophy behind ADR is
amicable dispute resolution and mediation is one such process that provides a
space to the parties to sit down and focus on what they really want, rather than
think what they need to seek or what the law will let them fight for[3]. Mediation
is defined in Black’s Law Dictionary as “a private, informal dispute resolution
process in which a neutral third party, the mediator, helps disputing parties to
reach an agreement

ADR has been both; increasingly used alongside, and integrated formally, into
legal systems internationally in order to capitalize on the typical advantages of
ADR over litigation:

 Suitability for multi-party disputes

 Flexibility of procedure - the process is determined and controlled by the
parties the dispute
 Lower costs
 Less complexity ("less is more")
 Parties choice of neutral third party (and therefore expertise in area of
dispute) to direct negotiations/adjudicate
 Likelihood and speed of settlements
 Practical solutions tailored to parties’ interests and needs (not rights and
wants,as they may perceive them)
 Durability of agreements
 Confidentiality
 The preservation of relationships and the preservation of reputations.
 CONCLUSION

Today, the nuclear Indian family is plagued by new generation ills. Forced
marriages, honour killings, live-in relationships, parental child removal, inter-
country adoptions, and surrogacy defy solutions in codified laws. Conventional
family law framers never visualized these societal complexities which have
mushroomed recently. The statutory law has not caught up with the maze of
intricacies which dog these family law issues.

Provisions for settlement of disputes outside the court find a prominent place in
the Civil Procedure Code, the Codified Marriage Laws and the Family Courts Act.
However, settlement, reconciliation and mediation in family law matters are
largely unutilized. Upholding the salutary provisions to endeavour reconciliation
in the first instance, the Supreme Court in the Jagraj Singh vs. Birpal Kaur case
(2007) clearly confirms that settlement efforts in matrimonial matters are not an
empty, meaningless ritual. Matters of the family which can be repaired must be
mediated and settled by sewing and patchwork. Human relationships must be
bonded by settlement and, as far as possible, not litigated in court.

Litigation — whether divorce, maintenance, alimony, child custody or any other

matrimonial cause — should not be viewed in terms of failure or success of legal
action. The amicable settlement of family conflicts is a social therapeutic
problem. These disputes should be reconciled within the family fold so as not to
disrupt the family structure. Adjudication is entirely different from conventional
civil or criminal proceedings. Reverberations of a family dispute are felt in society.
Their effective resolution by mediation or conciliation may provide lasting
solutions for ov erall good.
The Supreme Court in the Gaurav Nagpal vs. Sumedha Nagpal case (2009)
emphasized that efforts should be made to bring about conciliation to bridge
communication gaps to prevent people from rushing to courts. The pressing need
in the current social milieu is to create infrastructure machinery for alternative
disputes resolution (ADR) mechanisms. Particularly, marriages solemnized in India
and fractured abroad in the 30-million NRI community can be mended and
settled. It is these limping unions which need reconciliatory formulas in India to
prevent them from being split. Conflicts arising locally or overseas should not
deteriorate into other ancillary issues multiplying the problem.

The Mediation Cell of the Punjab and Haryana High Court, which attempts to
patch up matrimonial disputes, is an extremely positive development. The culture
of settlement needs propagation. ADR cannot see the light of day unless citizens
participate in the movement.

The conventional people's courts can be a means to this end. Individual initiatives
need awakening by self-consciousness, and not by the implementation of laws.
Spouses, parents and families need to realize the advantages of ADR in the family
structure. Matrimonial relief carved out of settlement will serve better than the
results obtained by adversarial litigation involving time, effort, and finances and,
above all, breaking-up of a family.

Issues of marriage, divorce and children ought to be put before family courts.
Trained counselors, mediators and advisers should resolve them mutually.
Superior courts themselves must inject the spirit of mediation in appellate
jurisdictions. A unanimous consensus saves a home, a family and a societal
foundation. Mandatory reconciliation procedures should be affirmed with the seal
of the court conclusively without any challenge.

Creating more courts under the Family Courts Act will contribute to the resolution
of family law disputes through ADR. The current handling of matrimonial litigation
by conventional courts is a poignant reminder of what prevails.

Trained counselors, professional mediators and, above all, specialist family law
judges could all form part of a well-organized adjudication team. This would give a
new dimension to ADR in family law.

Laws to promote ADR exist but the infrastructure, professional assistance and the
medium through which these beneficial reconciliatory mediation procedures are
to be implemented are lacking. The package is wholesome. The numbers are
huge. The need is dire. The solution is inbuilt. Effective implementation machinery
is required. The lawmakers must aid, assist and implement ADR.

Structured mediation is a non-adversarial Alternative Dispute Resolution (ADR)

mechanism and is completely voluntary. Unlike conciliation or other forms of
ADR where the adjudicator may not be trained, the mediator undergoes rigorous
training and has to function as an independent and neutral facilitator who has no
direct or indirect interest in any of the parties to the dispute or the subject matter of
the dispute. The mediator does not evaluate the merits of the dispute or the parties
to the dispute. As a facilitator, the mediator deploys special communication and
negotiation skills to help the disputants arrive at a mutually acceptable resolution.
Unlike a conciliator, the mediator does not give options or proposals for settlement
 Bibliography

1.Books:

Avtar singh, Arbitration and conciliation ,( EBC , new delhi ,2009)

K Ravi Kumar, ‘Alternative Dispute Resolution in Construction Industry’,

International Council of Consultants (ICC) papers, www.iccindia.org. at p 2. K Ravi
Kumar is assistant executive engineer, Salarjung Museum, Hyderabad

2.Report:

http://www.adrservices.org/conciliation.php
1. Government of india law commission of india, Need for Justice-dispensation through ADR

etc., Report No. 222, April 2009. 2. Government of India law Commission of India, Report no.
228.

2.http://www.au.af.mil/au/awc/awcgate/army/jagcnet/adr-negotiation.pdf

3.Article

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