Content Abstract Introduction ADR methods to marriage disputes Mediation Collaborative Divorce Arbitration Lok Adalats Negotiations Family Courts Benefits of Alternative Dispute Resolution Conclusion
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.
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 METHODS TO MARRIAGE DISPUTES The word alternative means something that can be used instead of something else 1. 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 hypocritical 2, there had to be a better way out. 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.
1 2
Longman Dictionary of contemporary English, 3 rd Edition
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 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. Levine4 , 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 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 4
451 NYS2d (1982)
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.
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. 5
‗Collaborative Law History‘, accessed on 15th March 2012
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 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. • 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.
6
Collaborative Practice in England‘,
7
Texas Family Code, 2005 Chapter 6 Subchapter G § 6.603
8
‗Resolution-Alternatives to Court‘, Rozenberg Joshua, ‗Fast –track Separations for Couples Who Agree‘ Daily Telegraph Newspaper. (London 20 October2008) 9
• 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 resolution10. 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)11. 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 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.12The parties and their attorneys are free to select 10
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 11
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 12
http://www.singhania.com/arbitration-dispute-resolution-india/
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 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.13 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 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 13
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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".)14 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.15
14
http://www.adrservices.org/conciliation.php
15
http://www.au.af.mil/au/awc/awcgate/army/jagcnet/adr-negotiation.pdf
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. The Act stipulates that a party is not entitled to be represented by a lawyer without the express permission of the Court. However, invariably the court grants this permission and usually it is a lawyer which represents the parties. The most unique aspect regarding the proceedings before the Family Court are that they are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, the matter taken up for trial by the Court. The Conciliators are professionals who are appointed by the Court. Once a final order is passed, the aggrieved party has an option of filing an appeal before the High Court. Such appeal is to be heard by a bench consisting of two judges. 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.
BENEFITS OF ALTERNATIVE DISPUTE RESOLUTION 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 overall 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.
