Disputes and commercial transactions have grown increasingly widespread in India. Any issue in our nation is settled either by litigation or via Alternative Dispute Resolution (ADR). The fundamental issue is that litigation is not only time consuming but also costly. In this article, we will discuss ADR and its procedures, as well as how it plays a significant part in resolving family disputes. Nowadays, most families that are at odds on any issue would prefer to reach an out-of-court settlement rather than go to court. ADR approaches may be quite useful in resolving a wide range of issues; conciliation courts are those that apply ADR procedures. This approach is highly significant in family conflicts since it allows the parties to compromise, negotiate, and ultimately achieve a fair resolution. ADR entails one-on-one conversations and discussions that aid in gaining a thorough knowledge of both sides.
Arbitration is a type of conflict settlement that can involve either an individual arbitrator or a tribunal. Its primary qualities include the fact that it is consensual, which implies that the conversations will take place behind closed doors with no information leaking. It is also a very straightforward and uncomplicated process, so the parties may be certain that the conclusion will be unbiased in any manner. As a result, we can state that arbitration has the following advantages: choice of arbiter, efficacy, and a certain level of secrecy, which helps to safeguard the privacy of the parties.
In family disagreements, there is a need for mediation and conciliation
As previously stated, in many circumstances, litigation does not offer people with the desired outcomes, so they search for alternative means, which is when mediation and conciliation come into play, and these approaches have actually benefited a lot of people in providing the desired outcomes.
The family courts legislation defines family disputes as follows:
A litigation between married persons seeking return of conjugal rights, judicial separation, or dissolution of marriage.
Any type of litigation involving guardianship or custody of a minor
Any property-related lawsuits between parties
A suit for financial assistance or upkeep.
Family Law Arbitration and Mediation
It is a method that enables not only separating and divorcing spouses, but also various members of a family, in resolving their disagreements and negotiating their decisions in a civilized manner. The practice or idea of mediation originally gained legal legitimacy in 1947 with the help of the Industrial Disputes Act; at the time, all conciliators were appointed in accordance with Section 4 of the act. Under the act and were tasked with mediating and promoting the resolution of all sorts of disputes through this procedure. Following that, in 1996, the Arbitration and Conciliation Act of 1996 was enacted, which included provisions for international commercial arbitration, domestic arbitration, and the enforcement of foreign arbitral awards.
Role of a mediator and arbitrator in family mediation
The mediator's and arbitrator's primary job is to assist parties in communicating with one another and in reaching an agreement.
It is the mediator's or arbitrator's responsibility to enlighten the parties about the entire procedure as well as the issues that must be addressed.
The mediator or arbitrator should always be neutral, and if he is unable to be neutral, he should withdraw from the case.
Confidentiality is also highly crucial in mediation and arbitration, thus all communications between the parties should be kept private.
Making Alternate Dispute Resolution compulsory in family matters and disputes
It has been recognized that ADR has a lot of potential in resolving numerous family problems in India, as well as in providing individuals with justice. It is stated that family disputes, due to their unique nature, are best resolved through arbitration and mediation; one of its most essential aspects is that the parties can reach an agreement on their own with the assistance of a third party in less time. The function of the arbitrator and mediator is similar to that of a positive catalyst in a chemical reaction; however, these procedures are not binding on the disputants. However, it should always be ensured that the emotional components of the parties are not overlooked in any manner, since this may generate a few issues. The expansion of mediation in family conflict resolution in India offers immense promise and will undoubtedly increase the system's capability to provide justice. Except for the circumstances specified in Section 23(2), the Hindu Marriage Act may also be changed, and mediation may be made necessary. Therefore, family law arbitration isn't just for spousal disputes.It also comprises resolving concerns such as child custody and welfare, maintenance and financial support, and other ancillary matters.
ORDER XXXIIA 6 of the Code of Civil Procedure
It's important to keep in mind that the CPC governs all actions under the Hindu Marriage Act and the Special Marriage Act. When it comes to family affairs, a modification to the Code of Civil Procedure might be made in 1976. In all marital cases, this amendment mandated the use of obligatory settlement methods.
Section 9 (1) of the Family Courts Act stipulates that in every suit or process, Family Court shall strive to do so in the first instance, whenever practicable, consistent with the nature and circumstances. a Family Court may, subject to any rules issued by the High Court, pursue such procedure as it deems proper to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the action or action.'
It is considered that no society can be structured without legislation; yet, because resolving conflicts in court is becoming a time-consuming procedure, it is predicted that an increasing number of people will turn to far more peaceful techniques such as arbitration, mediation, and conciliation. However, these methods necessitate specific techniques without which it would be a complete failure; however, it has been observed that this process is being used more frequently these days, particularly in cases of family matters, labour disputes, any type of medical negligence, and so on, which would normally involve litigation.
As a result, it is critical to find appropriate solutions to this problem so that people do not lose faith of receiving justice. It is preferable to begin sooner because the sooner we begin, the more reforms will be implemented. This is especially important in family disputes in the Indian context because families in India are interdependent, and thus their disputes should be given special attention so that they can obtain speedy justice and contribute to accomplishment.
The Family Courts Act, 1984, https://indiankanoon.org/doc/373687/
Mehka Sharma, Mediation in India, Mediate.com,