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Role of Alternate Dispute Resolution in family disputes

Role of Alternate Dispute Resolution in family


disputes

Submitted by: Saif Ali (Sec.A), IX Sem.


Submitted to: Professor Dr. Nuzhat Parveen Khan.

Clinical paper
Faculty of law,Jamia Milla Islamia,New Delhi
2017-2018

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Role of Alternate Dispute Resolution in family disputes

SYNOPSIS

PART-I
 Acknowledgement
 Prologue
 Introduction
 Outline of the paper
PART-II
 Concept of ADR
 Defining ADR,
 History of concept of ADR
PART-III
 Overview of ADR
PART-IV
 Various kinds of ADR
 Family Dispute Resolution
 Vulnerabilities and risks
PART-V
 Genesis of Family Disputes
 Statutory provisions
PART-VI
 Conclusion and suggestions.
 Bibliography

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Role of Alternate Dispute Resolution in family disputes

Acknowledgment

I would like to thank Guest Faculty, My teacher who taught this paper Mr. Sadaf sir along
with Professor Dr. Nuzhat Parveen Khan for their guidance and support because of which it
happened possible.

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Role of Alternate Dispute Resolution in family disputes

Prologue

“You have undertaken to cheat me. I won’t sue you, for the law is too slow. I’ll ruin you.”
Discords are bound to arise in society and ingenious human minds have always devised ways
and means for resolution of conflicts. Nature has endowed people with rationality and they
have constantly attempted to discover methods of establishing a cohesive society. Dispute
resolution is one of the major functions of a stable society. Through the medium of the State,
norms and institutions are created to secure social order and to attain the ends of justice or the
least to establish dispute resolution processes. States function through different organs and
the judiciary is one that is directly responsible for the administration of justice. In
commonplace perception judiciary is the tangible delivery point of justice. Resolving disputes
is fundamental to the peaceful existence of society. Therefore, effective and efficient systems
for determination of disputes become an obvious appendage.
Justice is the foundation and object of any civilized society. The quest for justice has been an
ideal which mankind has been aspiring for generations down the line. Preamble to our
Constitution reflects such aspiration as “justice-social, economic and political”. Article 39A
of the Constitution provides for ensuring equal access to justice. Administration of Justice
involves protection of the innocent, punishment of the guilty and the satisfactory resolution of
disputes.
The world has experienced that adversarial litigation is not the only means of resolving
disputes. Congestion in court rooms, lack of manpower and resources in addition with delay,
cost, and procedure speak out the need of better options, approaches and avenues. Alternative
Dispute Resolution mechanism is a click to that option.
RESEARCH METHODOLOGY: Author shall use Indian Law Institute (ILI) pattern
of citation in the research paper.

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Role of Alternate Dispute Resolution in family disputes

Outline of the paper


Author divides the paper into four parts. First, author discusses the concept of alternate
dispute resolution. It then provides background of ADR in Indian context more generally,
before turning to analyze case studies as examples of incomplete and failed securitization.
Then it draws light on different type of ADR and extent to which it brought the family
dispute resolution under the ambit of securitization. The final section draws out
recommendations from the analysis, and discusses the importance of developing a process for
successful and complete family dispute resolution.

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Role of Alternate Dispute Resolution in family disputes

INTRODUCTION
Gandhi ji said: "I had learnt the true practice of law. I had learnt to find out the better side of
human nature, and to enter men's hearts. I realized that the true function of a lawyer was to
unite parties given as under. The lesson was so indelibly burnt unto me that the large part of
my time, during the twenty years of my practice as a lawyer, was occupied in bringing about
private compromises of hundreds of cases. I lost nothing, thereby not even money, certainly
not my soul."1
Conflict is a fact of life. It is not good or bad. However, what is important is how we manage
or handle it. Negotiation techniques are often central to resolving conflict and as a basic
technique these have been around for many thousands of years. Alternative Dispute
Resolution (ADR) refers to a variety of streamlined resolution techniques designed to resolve
issues in controversy more efficiently when the normal negotiation process fails. Alternative
Dispute Resolution (ADR) is an alternative to the Formal Legal System. It is an alternative to
litigation. It was being thought of in view of the fact that the Courts are over burdened with
cases. The said system emanates from dissatisfaction of many people with the way in which
disputes are traditionally resolved resulting in criticism of the Courts, the legal profession and
sometimes lead to a sense of alienation from the whole legal system- thus, the need for
Alternative Dispute Resolution. With the spread of ADR programs in the developed and
developing world, creative uses for and designs for ADR systems are proliferating.
Successful programs are improving the lives of individuals and meeting broad societal goals.
There is a critical mass of ADR experience, revealing important lessons as to whether, when
and how to implement ADR projects. It is against this backdrop that this research paper
intends to discuss the various ADR mechanisms, the provisions present in India and the
World over, and its peculiarity, implementation and problems in the Indian context. The
various remedies to the situation have also been discussed.

1
Gandhi Discourses, India, available at: http://www.ebc-india.com/lawyer/articles/2002v1a3.htm (Visited on
1October 17, 2017).

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Role of Alternate Dispute Resolution in family disputes

Brief History of ADR:


ADR originated in the USA in a drive to find alternatives to the traditional legal system, felt
to be adversarial, costly, unpredictable, rigid, over-professionalized, damaging to
relationships, and limited to narrow rights-based remedies as opposed to creative problem
solving. The American origins of the concept are not surprising, given certain features of
litigation in that system, such as: trials of civil actions by a jury, lawyers' contingency fees,
lack of application in full of the rule "the loser pays the costs". Beginning in the late
nineteenth century, creative efforts to develop the use of arbitration and mediation emerged in
response to the disruptive conflicts between labor and management.2
In 1898, Congress followed initiatives that began a few years earlier in Massachusetts and
New York and authorized mediation for collective bargaining disputes. In the ensuing years,
special mediation agencies, such as the Board of Mediation and Conciliation for railway
labor, (1913) (renamed the National Mediation Board in 1943), and the Federal Mediation
and Conciliation Service (1947) were formed and funded to carry out the mediation of
collective bargaining disputes. Additional state labor mediation services followed. The 1913
New lands Act and later legislation reflected the belief that stable industrial peace could be
achieved through the settlement of collective bargaining disputes; settlement in turn could be
advanced through conciliation, mediation, and voluntary arbitration.2 At about the same time,
and for different reasons, varied forms of mediation for non-labor matters were introduced in
the courts.
When a group of lawyers and jurists spoke on the topic to an American Bar Association
meeting in 1923, they were able to assess court-related conciliation programs in Cleveland.
Conciliation in a different form also appeared in domestic relations courts. An outgrowth of
concern about rising divorce rates in the postwar 1940's and the 1950's, the primary goal of
these programs was to reduce the number of divorces by requiring efforts at reconciliation.
The concept of Alternative Dispute Resolution (ADR) has a long history and dating back to
“Jay treaty of 1974” between U.S.A. & U.K., which gave a tremendous boost to arbitration
procedures across the world.3 The proposed topic is mainly concentrated on impact of ADR
methods on courts such as arbitration conciliation & legal aid through Lok Adalat, mediation.

2
ADR History, India. Available at:
http://courts.state.de.us/Courts/Superior%20Court/ADR/ADR/adr_history.htm (Visited on October 17, 2017).
3
Conciliation concept. Available at: http://www.adrgroup.co.uk/history.html (visited on 17 October, 2017).

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Role of Alternate Dispute Resolution in family disputes

In early years of Independence there was much open discussion of the need for large
scale reform of the legal system. There was some outspoken criticism that the system was
entirely unsuited to Indian conditions and should be radically altered or abandoned. Critical
discussion focused on adjective law on court administration (delay, expense and corruption)
complexity of procedure, unsuitability of rules evidence, the adversarial rather than to
facilitate the achievement of divorces through less adversarial proceedings. Following
privately funded mediation efforts by the American Arbitration Association and others in the
late 1960s, the Community Relations Service (CRS) of the United States Department of
Justice initiated in 1972 a mediation program for civil rights disputes. Although a small
number of individual lawyers had been interested in and were practicing mediation ADR in
Britain for some years, it was only in 1989 when the first British based ADR company - IDR
Europe Ltd. - bought the idea across the Atlantic and opened its doors for business. This was
the start of ADR Group.
Since then many other ADR organizations, including CEDR (Centre for Dispute Resolution),
followed suite and assisted in the development and promotion of ADR in the UK. ADR, or
mediation (as it is now synonymously known as), is used world-wide by Governments,
corporations and individuals to resolve disputes big or small, of virtually any nature and in
most countries of the world. In developing countries where most people opt for litigation to
resolve disputes, there is excessive over-burdening of courts and a large number of pending
cases, which has ultimately lead to dissatisfaction among people regarding the judicial system
and its ability to dispense justice. This opinion is generated largely on the basis of the popular
belief, “Justice delayed is justice denied”.
However, the blame for the large number of pending cases in these developing countries or
docket explosion, as it is called, cannot be attributed to the Courts alone. The reason for it
being the non-implementation of negotiation processes before litigation. It is against this
backdrop that the mechanisms of Alternative Dispute Resolution are being introduced in
these countries. These mechanisms, which have been working effectively in providing an
amicable and speedy solution for conflicts in developed economies, are being suitably
amended and incorporated in the developing countries in order to strengthen the judicial
system. Many countries such as India, Bangladesh and Sri Lanka have adopted the
Alternative Dispute Resolution Mechanism.4 However, it is for time to see how effective the
implementation of these mechanisms would be in these countries.

4
Supra note 2 at 18.

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Overview of ADR:
Alternative dispute resolution encompasses a range of means to resolve conflicts short of
formal litigation. The modern ADR movement originated in the United States in the 1970s,
spurred by a desire to avoid the cost, delay, and adversarial nature of litigation. For these and
other reasons, court reformers are seeking to foster its use in developing nations. The interest
in ADR in some countries also stems from a desire to revive and reform traditional mediation
mechanisms. ADR today falls into two broad categories: court-annexed options and
community-based dispute resolution mechanisms. Court-annexed ADR includes
mediation/conciliation—the classic method where a neutral third party assists disputants in
reaching a mutually acceptable solution—as well as variations of early neutral evaluation, a
summary jury trial, a mini-trial, and other techniques. Supporters argue that such methods
decrease the cost and time of litigation, improving access to justice and reducing court
backlog, while at the same time preserving important social relationships for disputants.4
Community-based ADR is often designed to be independent of a formal court system that
may be biased, expensive, distant, or otherwise inaccessible to a population.5
New initiatives sometimes build on traditional models of popular justice that relied on elders,
religious leaders, or other community figures to help resolve conflict. India embraced lok
Adalat village-level people’s courts in the 1980s, where trained mediators sought to resolve
common problems that in an earlier period may have gone to the panchayat, a council of
village or caste elders. Elsewhere in the region, bilateral donors have recently supported
village-based shalish mediation in Bangladesh and nationally established mediation boards in
Sri Lanka6. In Latin America, there has been a revival of interest in the juece de paz, a legal
officer with the power to conciliate or mediate small claims. Some definitions of ADR also
include commercial arbitration: private adversarial proceedings in which a neutral third party
issues a binding decision. Private arbitration services and centers have an established role in
the United States for commercial dispute resolution, and are spreading internationally as
business, and the demand for harmonization, expands.

5
World bank on mediation, Geneva. Available at:
http://www1.worldbank.org/publicsector/legal/ADR%20Workshop.pdf (Visited on 17 October 17, 2017).
6
Ibid. at 13.

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In the last decade, more countries have passed legislation based on the 1985 UNCITRAL
Model Law on International Commercial Arbitration, which makes an arbitral award legally
binding and grants broad rights to commercial parties choosing arbitration. It is important to
distinguish between binding and non-binding forms of ADR. Negotiation, mediation and
conciliation are non-binding forms, and depend on the willingness of parties to reach a
voluntary agreement. Arbitration programs may be binding or non-binding. Binding
Arbitration produces a third party decision that the disputants must follow even if they
disagree with the result much like a judicial decision.7 Non-binding Arbitration produces a
third party decision that the parties may reject. It is also important to distinguish between
mandatory processes and voluntary processes. Some judicial systems require the parties to
negotiate, conciliate, mediate or arbitrate, prior to court action. ADR processes may also be
required as part of prior contractual agreement between parties. In voluntary processes,
submission of a dispute to an ADR process depends entirely on the will of the parties.
Therefore, it can observed that the term “Alternative dispute resolution” can refer to
everything from facilitated settlement negotiations in which disputants are encouraged to
negotiate directly with each other, prior to some other legal process, to arbitration systems or
mini-trials that look and feel very much like a courtroom process. Processes designed to
manage community tension or facilitate community development issues can also be included
into the rubric of ADR.8

Elaborate explanation of the various kinds of ADR mechanisms:


A) Arbitration: Arbitration, in the law, is a form of alternative dispute resolution —
specifically, a legal alternative to litigation whereby the parties to a dispute agree to submit
their respective positions (through agreement or hearing) to a neutral third party (the
arbitrator(s) or arbiter(s)) for resolution.9
B) Mediation: Mediation is a process of alternative dispute resolution in which a neutral
third party, the mediator, assists two or more parties in order to help them negotiate an
agreement, with concrete effects, on a matter of common interest; lato sensu is any activity in
which an agreement on whatever matter is researched by an impartial third party, usually a
professional, in the common interest of the parties.10
Stages of Mediation: Mediation commonly includes the following aspects or stages:

7
Arbitration, concept. Available at: http://en.wikipedia.org/wiki/Arbitration (Visited on 17 October 18, 2017).
8
Supra note 6 at 8.
9
Concept of mediation. Available at: 9 http://www.adrgroup.co.uk/types.html (Visited on October 18, 2017).
10
Ibid. at 8.

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• A controversy, dispute or difference of positions between people, or a need for decision


making or problem-solving;
• Decision-making remaining in the parties rather than being made by the neutral;
• The willingness of the parties to negotiate a positive solution to their problem and to accept
a discussion about respective interests and objectives;
• The intent to achieve a positive result through the facilitative help of an independent and
neutral third person. The typical mediation has no formal compulsory elements, although
some common elements are usually found:
• Each party having a chance to tell his or her story;
• Identification of issues, usually by the mediator;
• The clarification and detailed specification of the respective interests and objectives,
• The conversion of respective subjective evaluations into more objective values,
• Identification of options;
• Discussion and analysis of the possible effects of various solutions;
• The adjustment and the refining of the accessory aspects,
• memorializing the agreements into a written draft Due to the particular character of this
activity, each mediator uses a method of his or her own (a mediator's methods are not
ordinarily governed by law), that might eventually be very different from the above scheme.
Also, many matters do not legally require a particular form for the final agreement, while
others expressly require a precisely determined form. Most countries respect a Mediator’s
confidentiality. Mediation differs the most from other adversarial resolution processes by
virtue of its simplicity, informality, flexibility and economy.
C) Conciliation11: Conciliation is an alternative dispute resolution process whereby the
parties to a dispute (including future interest disputes) agree to utilize the services of a
conciliator, who then meets with the parties separately in an attempt to resolve their
differences. Conciliation differs from arbitration in that the conciliation process, in and of
itself, has no legal standing, and the conciliator usually has no authority to seek evidence or
call witnesses, usually writes no decision, and makes no award.
Conciliation differs from mediation in that the main goal is to conciliate, most of the time by
seeking concessions. In mediation, the mediator tries to guide the discussion in a way that
optimizes parties’ needs, takes feelings into account and reframes representations. In

11
Conciliation , world Bank. Available at: 10 http://www1.worldbank.org/publicsector/legal/adr.htm (Visited
on October 18, 2017).

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conciliation the parties seldom, if ever, actually face each other across the table in the
presence of the conciliator.12 (This latter difference can be regarded as one of species to
genus. Most practicing mediators refer to the practice of meeting with the parties separately
as "caucusing" and would regard conciliation as a specific type or form of mediation practice
-- "shuttle diplomacy" -- that relies on exclusively on caucusing. All the other features of
conciliation are found in mediation as well.)
If the conciliator is successful in negotiating an understanding between the parties, said
understanding is almost always committed to writing (usually with the assistance of legal
counsel) and signed by the parties, at which time it becomes a legally binding contract and
falls under contract law. A conciliator assists each of the parties to independently develop a
list of all of their objectives (the outcomes which they desire to obtain from the conciliation).
The conciliator then has each of the parties separately prioritize their own list from most to
least important. She then goes back and forth between the parties and encourages them to
"give" on the objectives one at a time, starting with the least important and working toward
the most important for each party in turn. The parties rarely place the same priorities on all
objectives, and usually have some objectives which are not on the list compiled by parties on
the other side. Thus the conciliator can quickly build a string of successes and help the parties
create an atmosphere of trust which the conciliator can continue to develop.
D)Expert Determination:13 Expert determination is a historically accepted form of
dispute resolution invoked when there isn't a formulated dispute in which the parties have
defined positions that need to be subjected to arbitration, but rather both parties are in
agreement that there is a need for an evaluation, e.g. in a preceding contract.
The practise itself is millennia old and well established where complex legal institutions
either have not developed, or are unavailable, such as tribal societies and criminal
organisations. The first mention that distinguishes specifically against the practise of
arbitration, and introduces the formula "as an expert and not as an arbitrator" was in Dean v.
Prince 1953 Ch. 590 at 591 (misquoted) and subsequently on appeal in the year 1954 1 Ch.
409 at 415.12
E) Negotiation14: Negotiation is the process whereby interested parties resolve disputes,
agree upon courses of action, bargain for individual or collective advantage, and/or attempt to

12
Ibid. 7.
13
Wikipedia, Available at: 1 http://en.wikipedia.org/wiki/Conciliation (Visited on October 18, 2017).

14
Supra note 5 at 9.

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craft outcomes which serve their mutual interests. It is usually regarded as a form of
alternative dispute resolution. Given this definition, one can see negotiation occurring in
almost all walks of life, from parenting to the courtroom.

Family Disputes have been referred as:

1) For arbitration or conciliation, the provisions of the arbitration and conciliation act, 1996
shall apply as if the proceedings for arbitration or conciliation were referred for settlement
under the provisions of that act. 15
2) To Lok Adalat, the account shall refer the same to Lok Adalat in accordance with the
provisions of sub-section(1) of section 20 of the Legal Services Authority Act, 1987 and all
other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat.
3) For judicial settlement, the court shall refer the same to a suitable institution or person and
such institution or person shall be deemed to be a Lok Adalat under the provisions of the Act.
4) For mediation, the court shall affect a compromise between the parties and shall follow
such procedure as may be prescribed.
The foregoing analysis clearly shows that the ADR method is much more beneficial
to the public than the adversarial system of settlement of disputes. This is because in the
former, the time consumed is not very long and expenses are also quite small. On the other
hand, under the later system, it takes quite a few decades for settlement of litigation. In fact,
there are cases which have been settled after 30-40 years in a traditional type of settlement of
disputes. The ADR methods are quite effective in particular in following types of
litigations:16
i) Family matters like divorce, maintenance etc.
ii) Partition matters like among members of a joint family.
iii) For settlement of industrial disputes between the employers and employees.
In fact, the Industrial Disputes Act provides for settlement of disputes through
mediation and conciliation. Thus, in certain fields, it is always desirable to get the disputes
settled through negotiation, arbitration, conciliation etc, rather than to seek settlement through
adversarial system which is long protracted, strenuous, tiresome and cumbersome. The topic
15
“ Research Survey on the Conciliation of Disputes under the KB Law”, book boundmimeo, 215 pages, 1984,
UP Law Center.

16
Royales v. Intermediate Appellate Court, G.R. No. 65072, January 31, 1984.

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is of great contemporary importance and accordingly it has been selected as the subject
matter of present thesis.

Hypothesis:17
The dispute is basically a difference of opinion resulting in differences regarding the
interests’ rights and liabilities. Dispute is different from conflict with reference to the
seriousness and timing. The dispute may develop into conflict. Every dispute has to be curbed
at the earliest level from growing into a very serious problem. Because of dispute, the
efficient business relationships and more fulfilling interpersonal relationship should not be
lost. Thus there is a need for dispute resolution process, which can protect the relationships
and at the same time find a workable solution to the problem at an early stage.
The foundation of democratic civilization is rule of law, which means governance not
by persons by principles or a system or by the developed constituting. In the context of
judiciary, rule of law means independent judiciary. The rule of law and principles of natural
justice are inherently related to each other. It is position from excesses of power by the
authorities or who are in a commanding position. It means fairness, equity and equality,
reasonableness. It is also called natural law. The article 21 and 14 of Indian constitution
embody these principles of natural justice and rule of law. Fairness when accused in deprived
of liberty Article 21. The absence of discriminatory class legislation is found in Article 21.

For the implementation of ADR methods, the following measures


may be adopted:18

1. Steps to be taken to promote people’s participation and to promote self reliant development
and create legal awareness and respect for right of others.
2. Educate the both parties about the ADR processes in order to improve cooperation,
positive attitude, and trust.
3. Establish efficient management in organizations is useful in resolving interpersonal
conflict, employment relationships, and business dealings.
4. Creating goodwill to avoid the appeal on decided judgments and avoiding prolonged battle.

17
Rule 4.1, CIAC Revised Rules of Procedures Governing Construction Arbitration, November, 2005.
18
See Final Report, Pilot Project on Court Referral for Mediation, book bound, 127 pages, 1993

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5. Categorization of disputes and their remedies through innovative methods.


6. The members to be appointed from jurists, who have fair knowledge the natural principles
of justice and law.
7. Suggestive methods for more flexible alternative, for a wide variety of disputes, small as
well as large.
Nothing is static, everything is dynamic. Due to evolution of time everything changes viz.,
process, tradition, way of living etc. The concept of dispute was very old and still in vogue.
Alternate Dispute Resolution system is not a new phenomenon for the people of this country;
it has been prevalent in India since time immemorial. Ancient system of dispute resolution
made a significant contribution, in reaching resolution of disputes relating to family, social
groups and also minor disputes relating to trade and property. Village Level Institutions
played the leading role, where disputes were resolved by elders in their particular caste or
kula and panchayat system, which was an informal way of mediation. In earlier days disputes
hardly reached courts. Decisions given by the elderly council were respected by all. But
subsequently boon accompanied bane, the very system lost its aura. The delay in justice
dispensation, particularly in commercial and family disputes, causes great hardship and
financial loss to the parties. In order to reduce delays in resolution of disputes, the
Governments and the Judiciary are encouraging settlements or counseling techniques or
conciliation which are part of ADR. In this present day, Life is a circus in the fast-moving
21st century. Juggling job responsibilities, work and home responsibilities, wage and age –
it’s all a juggling act. Successful career aspirants don’t become obsessed with dropping the
ball, because they know they will bounce back. Stay balanced on the high wire, and don’t be
afraid to go a little off-balance.
The Law Commission in its 59th report (1974) has also stressed that in dealing with disputes
concerning the family, the Court ought to adopt an approach radically different from that
adopted in ordinary civil proceedings and that it should made reasonable efforts at settlement
before the commencement of the trail. The Code of Civil Procedure was amended in 1976 to
provide for a special procedure to be adopted in suits or proceedings relating to matters
concerning the family. However, not much use has been made by the Courts in adopting this
conciliatory procedure and the courts continue to deal with family disputes in the same
manner as other civil matters and the same adversary approach prevails. The need was
therefore, felt, in the public interest, to establish family courts for speedy settlement of
disputes. Section 9 of the Family Courts Act, 1984 obliges a family court to persuade the

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parties to arrive at a settlement by conciliation. Family dispute Resolution got more


adjustability, why because APFC (HC) Rules enable the Family Courts to held sittings
outside normal working hours and holidays if the Judge considers it necessary.
The Chief Justice of Bombay High Court has introduced an innovative mechanism. Those
Judges who are interested in spending two hours after office hours in mediation, with training
on the aspects of mediation, will take up matters of family disputes.
Section 23 of Hindu Marriage Act, 1955 recognised the need for ADR. Family Courts Act,
1984 also insisted on conciliatory approach to settle family problems. The process of
conciliation received statutory recognition in CPC O.XXXII A, S.13 of HM Act. Though the
women of India demanded establishment of Family Courts in 1975, the Government of India
took ten years to pass the necessary legislation. It is a matter of regret that, even though the
Family Courts Act was passed in 1984, in 1996 in AP, they were established.

Genesis of Family Disputes:-19


Ego often called self-respect Balance their career and family, often leads to stress and strain
i.e. Family V Career. Recently, there was a conversation between two young women at a
popular coffee shop, one woman advising other friend woman, soon to be married and not to
get pregnant, concentrate on career by taking pills. When the contraceptive pill was first
introduced, it was a triumph for working women, a symbol of liberation. Women then were
keen to get on it; today we know the side effects include “blood clots, diabetes, depression or
anxious emotional states” and many women are keen to get off it.
The Hyderabad city has already earned a few sobriquets like being IT Development and the
country’s suicide capital. And now, the city is heading towards earning the notoriety of being
the country’s divorce capital after Bangalore. The rising number of divorce cases in
Hyderabad has needed the state government to decide on setting up additional family court in
CCC, Hyderabad.
Most applicants were found to be in their late 20s and early 30s, and the figures are only
rising in the burgeoning corporate world here. While the number of applicants from the IT
industry has always been high. Experts said women from the lower and middle classes a
steady and stable income, reducing their financial dependency on their husbands. Financial
stability had helped these women develop a strong element of individual choice, giving them
an opportunity to formalize their marital dissatisfaction through divorce, experts said.

19
Article 222 , Civil Code, re-enacted into Article 150 of the Family Code

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Sources from the family courts informed that nearly 80% of the divorce cases were filed
under the Hindu Marriage Act 1955.20
While 70% of the total number of cases were filed by IT professionals, BPO employees and
other private companies, the remaining 30% were filed by members of the other strata of the
society, they added. Family problems are caused by a number of different reasons; ex. not
being open with one another, not spending enough time together, drug and drinking
problems, abuse and neglect. The reasons ranged from family disputes, bad debts, ailments
and other miscellaneous reasons.
In case of marital disputes, professional counseling assumes a vital role. The root cause for
differences between husband and wife become difficult to find, especially in case of divorce
petitions where stereotypical allegations were made, he said. In this scenario, professional
counseling becomes vital to unearth the true cause of the dispute and to bring about an
amicable solution.
The false reasons presented for divorce exacerbated the situation, as both the parties felt
wronged, which made reconciliation that much more difficult. The need for professional
counseling and said that there were many cases where people reported to her that the
counseling was improper. The need of the hour was pre-marital counseling, so that people
entering marriage could be aware of the commitments involved in the relationship. There
were three stages of counseling people with marital disputes.
The first was the initial state where the situation had not yet deteriorated to the extent of
approaching the law, the second was at the police station where many with marital disputes
turn up and the third was during divorce proceedings. So there should be a stress for the need
for counseling during early stages itself.
Counseling is a process through which one person helps another by a purposeful conversation
in an understanding atmosphere enabling him/her to cope more effectively with life
problems. It may be the one of the resolution for family disputes to settle amicably. As
counseling is a face -to - face communication, the counselor must have the skills to
understand his/ her clients, develop a friendly relationship and give complete, correct and
clear information, using an easy language.

20
Ibid.

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Family Counseling is one of the resolute modes for family disputes, useful
for:
1. Problems developing in one or more family members who affect all (i.e.: children's
Problems, anger, depression in one partner etc.)
2. Family or relationship change such as divorce, or children leaving home
3. Cultural and ethnic conflict within relationships
4. Individual Counseling

Background note to ADR:


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’21 (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.

21
Address by C.J. Panganiban, 30 Nov. 2006.

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Existing statutory provisions for ADR law in India:22


The sensitivity of the legislature to providing speedy and efficacious justice in India is mainly
reflected in several enactments which are enumerated as hereunder: 1 Arbitration under The
Arbitration and Conciliation Act, 1996; 2 Settlement under Order XXXIIA of the Indian
Code of Civil Procedure, 1908; 3 The incorporation2 of section 89 in the traditional Civil
Procedure Code (CPC) read with Order X Rules I-A, I-B, and I-C for Settlement of Disputes
outside court. 4 The Establishment of Lok Adalat under The Legal Services Authority Act,
1987; looks to mediation, conciliation and informal settlement of disputes in litigation. 5
Reconciliation under Sections 23 (2) and 23 (3) of the Hindu Marriage Act, 1955 as also
under Section 34 (3) of the Special Marriage Act, 1954; 6 Duty of family court to make
efforts for settlement under Family Courts Act, 1984.
The Constitutional Mandate23:
Article 21 of the Constitution of India declares in a mandatory tone that no person shall be
deprived of his life or his personal liberty except according to procedure established by law.
The words “life and liberty” are not to be read narrowly in the sense monotonously dictated
by dictionaries; they are organic terms which are to be construed meaningfully. The right to
speedy trial has been held to be a part of right to life or personal liberty by the Supreme Court
of India.24 The Supreme Court has allowed Article 21 to stretch its arms as wide as it
legitimately can.4 The reason is very simple. This liberal interpretation of Article 21 is to
redress that mental agony, expense and strain which a person proceeded against in litigation
has to undergo and which, coupled with delay, may result in impairing the capability or
ability of the accused to defend himself effectively. Thus, the Supreme Court has held the
right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article
21. A speedy trial encompasses within its sweep all its stages including investigation, inquiry,
trial, appeal, revision and re-trial. In other words, everything commencing with an accusation
and expiring with the final verdict falls within its ambit. The same has received recognition
from the “legislature” as well in the form of introduction of “Alternative Dispute Resolution”

22
Government has entered into separate peace agreements with the military rebels and with the Moro
National Liberation Front (MNLF). It is currently negotiating another agreement with the Moro Islamic
Liberation Front (MILF).
23
Ibid.
24
Presidential Decrees issued by deposed President Marcos were treated as law.

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Existing family law legislations prevalent in India:


India is a land of diversities with several religions. The oldest part of the Indian legal system
is the personal laws governing the Hindus and the Muslims. The Hindu personal law has
undergone changes by a continuous process of codification. The process of change in society
has brought changes in law reflecting the changed social conditions and attempts the solution
of social problems by new methods in the light of experience of legislation in other countries
of the world. The Muslim personal law has been comparatively left untouched by
legislations.
The Indian legal system is basically a common law system. The Indian Parliament has
enacted the following family laws which are applicable to the religious communities defined
in the respective enactments themselves. A brief description of each of these separate
enactments is given as hereunder. •The main marriage law legislation in India applicable to
the majority population constituted of Hindus is known as The Hindu Marriage Act, 1955,
which is an act to amend and codify the law relating to marriage among Hindus. Ceremonial
marriage is essential under this act and registration is optional. It applies to any person who is
a Hindu, Buddhist, Jaina or Sikh by religion and to any other person who is not a Muslim,
Christian, Parsi or Jew by religion. The act also applies to Hindus resident outside the
territory of India. Nothing contained in this act shall be deemed to affect any right recognized
by custom or conferred by any special enactment. Likewise, in other personal law matters,
Hindus are governed by the Hindu Succession Act, 1956, which is an act to amend and codify
the law relating to intestate succession among Hindus. The Hindu Minority and Guardianship
Act, 1956 is an act to amend and codify certain parts of the law relating to minority and
guardianship among Hindus and the Hindu Adoptions and Maintenance Act, 1956 is an act to
amend and codify the law relating to adoptions and maintenance among Hindus. It may be
pertinent to point out that the Indian Succession Act, 1925, is an act to consolidate the law
applicable to intestate and testamentary succession in India unless parties opt out and choose
to be governed by their respective codified law otherwise applicable to them. In respect of
issues relating to guardianship, the Guardian and Wards Act, 1890 applies to non-Hindus.
Interestingly, Section 125 of the Code of Criminal Procedure 1973, provides that irrespective
of religion, any person belonging to any religion can approach a magistrate to request
maintenance. Therefore, apart from personal family law legislations, both Hindus and non-

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Hindus have an independent right of maintenance under the general law of the land, if he or
she is otherwise entitled to maintenance under this code.
•The Indian Parliament also enacted the Special Marriage Act, 1954, as an act to provide a
special form of marriage in certain cases, for the registration of such and certain other
marriages and for divorces under this act. This enactment for solemnizing marriage by
registration is resorted to by Hindus, non-Hindus and foreigners marrying in India who opt
out of the ceremonial marriage under their respective personal laws. Registration is
compulsory under this enactment.
•The Muslim Personal Law (Shariat) Application Act,1937, The Dissolution of Muslim
Marriages Act,1939, The Muslim Women ( Protection of Rights on Divorce) Act, 1986 and
The Muslim Women ( Protection of Rights on Divorce) Rules, 1986, applies to Muslims
living in India. For enforcement and adjudication of all matrimonial and other related
disputes of any person in any of the different religious or non-religious communities under
the respective legislations mentioned above, the designated judicial forum or court where
such petition is to be lodged is prescribed in the respective enactments themselves. There is
an organized system of designated civil and criminal judicial courts within every state in
India which works under the overall jurisdiction of the respective high court in the state. It is
in the hierarchy of these courts that all family and matrimonial causes are lodged and
decided. In addition, the Indian Parliament has enacted The Family Courts Act, 1984 to
provide for the establishment of family courts with a view to promote conciliation in and to
secure speedy settlement of disputes relating to marriage and family affairs. Despite the
existence of an organized, well regulated and established hierarchy of judicial courts in India,
there are still unrecognized parallel community and religious courts in existence whose
interference has been deprecated by the judicial courts since such unauthorized and
unwarranted bodies work without the authority of law and are not parts of the judicial system.
Hindu Marriage Act:
Settlement under Indian Family Law Statutes Reconciliation is mandatory under The Hindu
Marriage Act, 1955 (HMA) and The Special Marriage Act, 1954 (SMA). However, other
Indian matrimonial statutes do not provide for it and there is therefore no statutory mandate
to attempt settlement in other cases.25 Reconciliation under Section 23(2) and section 23(3) of
The Hindu Marriage Act Section 23 (2) HMA states that before proceeding to grant any relief

25
https://www.iafl.com/cms_media/files/alternative_dispute_resolution_in_indian_family_law.pdf ( Visited
on October 18, 2017).

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under it, there shall be a duty of the court in the first instance, in every case to make every
endeavour to bring about reconciliation between parties where relief is sought on most of the
fault grounds for divorce specified in Section 13 HMA.26 Section 23 (3) HMA makes a
provision empowering the court on the request of parties or if the court thinks it just and
proper to adjourn the proceedings for a reasonable period not exceeding 15 days to bring
about reconciliation. It must be borne in mind that a Hindu Marriage is a sacrament and not a
contract. Even if divorce is sought by mutual consent, it is the duty of the court to attempt
reconciliation in the first instance.27 Accordingly, Hindu law advocates rapprochement and
reconciliation before dissolving a Hindu marriage.

Need and the purpose of ADR in India:


The Indian Arbitration and Conciliation Act, 1996, below 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.28
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.

26
Ibid.
27
Supra note 3 at 7.
28
Legal aid, India. Available at:
https://www.iafl.com/cms_media/files/alternative_dispute_resolution_in_indian_family_law.pdf ( Visited on
October 18, 2017).

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Accordingly, arbitration is a popular mode of dispute resolution in civil disputes and


commercial agreements invariably contain an arbitration clause.

Provisions for ADR Under the Code of Civil Procedure, 1908:29 The Code of
Civil Procedure, 1908 (CPC for short), as amended from time to time is an act to consolidate
and amend the laws relating to the procedure of the courts of civil judicature in India. All
litigation of a civil nature in India is essentially governed by the substantive provisions of
law, contained in the various Sections of the CPC and the corresponding implementing
provisions are contained in various Orders and Rules of the CPC. There are three substantive
and procedural provisions contained in the CPC which provide for settlement of disputes
outside the court. They are extracted hereunder in the order given above: Section 89 of the
Code of Civil Procedure: Settlement of disputes outside the Court With a view to
implementing the 129th Report of the Law Commission of India, it was made obligatory for
courts to refer disputes after the issues were framed, for settlement either by way of
arbitration, conciliation, mediation, judicial settlement or through Lok Adalat (a settlement
court). It was felt that only after the parties failed to get their disputes settled through one of
the alternate dispute resolution methods, should the litigation proceed further in the court in
which it was filed.
In a developing country like India with major economic reforms under way within the
framework of the rule of law, strategies for swifter resolution of disputes for lessening the
burden on the courts and to provide means for expeditious resolution of disputes, there is no
better option but to strive to develop alternative modes of dispute resolution (ADR) by
establishing facilities for providing settlement of disputes through arbitration, conciliation,
mediation and negotiation. In this context the legendaries of various fields i.e., commercial,
administrative and legal unanimously constituted an institution to be called “International
Centre for Alternative Dispute Resolution-ICADR. This institution was established in Delhi
on 31st May, 1995 and registered under the Society Registration Act, 1960. It is an
autonomous non-beneficial institution. The chief object of this institution is to inculcate and
expand the culture of alternative dispute resolution.
In essence the system of ADR emphasizes upon:
• Mediation rather than winner take all.
• Increasing Accessibility to justice.

29
Id. 4.

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• Improving efficiency and reducing court delays.


The Constitution of India through Article 14 guarantees equality before the law and the equal
protection of the laws. Article 39A of the Constitution mandates the State to secure that the
operation of the legal system promotes justice on a basis of equal opportunity, and ensure that
the same is not denied to any citizen by reason of economic or other disabilities. Equal
opportunity must be afforded for access to justice. Law should not only treat all persons
equally, but also the law must function in such a way that all the people have access to justice
in spite of economic disparities. The expression “access to justice” focuses on the following
two basic purposes of the legal system.
• The system must be equally accessible to all.
• It must lead to results that are individually and socially just.
It is one of the most important duties of a welfare state to provide judicial and non-judicial
dispute-resolution mechanisms to which all citizens have equal access for resolution of their
legal disputes and enforcement of their fundamental and legal rights. Poverty, ignorance or
social inequalities should not become barriers to it. The workload of Indian Judiciary
increased by leaps and bounds and has now reached a stage of unwieldy magnitude, which
has in fact led to a large backlog of cases. Due to this ADR has become the need of the hour
for Indian Judiciary. Considering the delay in resolving the dispute Abraham Lincon has once
said: “Discourage litigation. Persuade your neighbors to compromise whenever you can point
out to them how the nominal winner is often a real loser, in fees, expenses, and waste of
time”.30
“In the same vein Judge Learned Hand commented, “I must say that as a litigant, I should
dread a law suit beyond almost anything else short of sickness and of death”.

Need of ADR in Family dispute resolution:


Recently at Vijayawada in Andhra Pradesh, Family Counseling Centre setup by the Police
Commissioner in September last, couples, which are approaching the police with complaint,
are returning home with a smile on their faces.31
The counseling centre functions under the aegis of the Women Protection Cell located on the
Commissionerate premises. Individual counseling is being given to both husband and wife,
who approach the police to lodge a complaint related to domestic trouble. Based on the
seriousness of the issue, the police even use the services of legal experts and psychologists to

30
Arbitration & ADR (An essential revision aid for Law Students), Universal Law Series, Universal Law
Publishing Company Ltd.
31
Ibid. 9.

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solve the problem. The experts seek the case details from complainants and offer suggestions
to resolve the issue in a peaceful manner.
Rapprochement:
The police interference would not be there either in disposals of the case or any pressures
over the members. The police should create the congenial atmosphere for the rapprochement
of estranged couples explaining them the bitterness of life if they fail to live together.
Now family courts that are litigant friendly:
Imagine a courtroom complete with colorful walls, specially designed tables and chairs,
games, a television and even baby sitters - all for kids. Two ‘family courts’ inaugurated in
Delhi to sort out family disputes in congenial and supportive surroundings instead of
overcrowded and repelling environs of regular courts. The aim of having such courts is to
give friendly atmosphere to the kids who come with feuding couples, he said.
One such family court is already functioning in Dwarka court complex. “After witnessing an
overwhelming response for Dwarka court, planning to extend it to all other district courts as
well”.32

Mechanisms of ADR:
ADR can be broadly classified into two categories; court-annexed options (it includes
mediation, conciliation) and community based dispute resolution mechanism (Lok- Adalat).
The mechanism of Arbitration and Conciliation was introduced in India through the
Arbitration and Conciliation Act, 1996: Part I of this act formalizes the process of Arbitration
and Part III formalizes the process of Conciliation. (Part II is about Enforcement of Foreign
Awards under New York and Geneva Conventions.).
Arbitration: is a procedure in which the dispute is submitted to an arbitral tribunal which
makes a decision (an award) on the dispute that is binding upon the parties. Arbitration
generally grows when the parties through the contract agrees to resort to arbitration process,
in case of disputes that may arise in future regarding contract terms and conditions. The
process of arbitration can start only if there exist a valid Arbitration Agreement between the
parties prior to the emergence of the dispute. As per Section 7 33, such an agreement must be
in writing. The contract, regarding which the dispute exists, must either contain an arbitration

32
The Law and Practice of Arbitration and Conciliation by O.P.Malhotra & Indu Malhotra
Lexisnexis, Butterworth, Wadhwa Nagpur.
33
Supra note 25 at 6.

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clause or must refer to a separate document signed by the parties containing the arbitration
agreement.
The existence of an arbitration agreement can also be inferred by written correspondence
such as letters, telex, or telegrams which provide a record of the agreement. Any party to the
dispute can start the process of appointing arbitrator and if the other party does not cooperate,
the party can approach the office of Chief Justice34 for appointment of an arbitrator. A sole
arbitrator or panels of arbitrators so appointed constitute the Arbitration Tribunal. The
arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to
challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal
itself. If the tribunal rejects the request, there is little the party can do accept to approach a
court after the tribunal makes an award. Section 34 provides certain grounds upon which a
party can appeal to the principal civil court of original jurisdiction for setting aside the award.
Once the period for filing an appeal for setting aside an award is over, or if such an appeal is
rejected, the award is binding on the parties and is considered as a decree of the court.

Conciliation:35
A non-binding procedure, in which an impartial third party i.e. the conciliator or the
mediator, assists the parties to a dispute in reaching a mutually satisfactory and agreed
settlement of disputes. Conciliation is a less formal form of arbitration. This process does not
require an existence of any prior agreement. Any party can request the other party to appoint
a conciliator. One conciliator is preferred but two or three are also allowed. Parties may
submit statements to the conciliator describing the general nature of the dispute and the points
at issue. Each party sends a copy of the statement to the other. The conciliator may request
further details, may ask to meet the parties, or communicate with the parties orally or in
writing. Parties may even submit suggestions for the settlement of the dispute to the
conciliator.
When it appears to the conciliator that elements of settlement exist, he may draw up the terms
of settlement and send it to the parties for their acceptance. If both the parties sign the
settlement document, it shall be final and binding on both.
Mediation: Mediation, aims to assist two (or more) disputants in reaching an agreement.
The parties themselves determine the conditions of any settlements reached— rather than

34
Ibid. 8.
35
Law of Arbitration and Conciliation, Avtar Singh, 2006, Eastern Book Company Ltd.

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accepting something imposed by a third party. The disputes may involve (as parties) states,
organizations, communities, individuals or other representatives with a vested interest in the
outcome. Mediators use appropriate techniques and/or skills to open and/or improve dialogue
between disputants, aiming to help the parties reach an agreement (with concrete effects) on
the disputed matter. Normally, all parties must view the mediator as impartial. Disputants
may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace,
community and family matters. A third-party representative may contract and mediate
between (say) unions and corporations. When a workers’ union goes on strike, a dispute takes
place, and the corporation hires a third party to intervene in attempt to settle a contract or
agreement between the union and the corporation.36
Negotiation:37 Negotiation is a dialogue intended to resolve disputes, to produce an
agreement upon courses of action, to bargain for individual or collective advantage, or to
craft outcomes to satisfy various interests. It is the primary method of alternative dispute
resolution. Negotiation occurs in business, non-profit organizations, and government
branches, legal proceedings, among nations and in personal situations such as marriage,
divorce, parenting, and everyday life. Those who work in negotiation professionally are
called negotiators. Professional negotiators are often specialized, such as union negotiators,
leverage buyout negotiators, peace negotiators, hostage negotiators, or may work under other
titles, such as diplomats, legislators or brokers.
Lok-Adalat:38 The Lok-Adalat system contributed under National Legal Service Authority
Act, 1987 is a uniquely Indian approach. The Constitutional duty of the State to provide legal
aid, prompted by the decisions of the apex court, led to the formation of a Committee for
Implementing Legal Aid Schemes (CILAS). The legal legitimacy of Lok Adalat flows from
the Legal Services Authorities Act, 1987. It roughly means “People’s court”. This is a non-
adversarial system, where by mock courts (called Lok Adalats) are held by the State
Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal
Services Committee, or Taluk Legal Services Committee, periodically for exercising such
jurisdiction as they thinks fit. These are usually presided by retired judge, social activists, or
members of legal profession. It does not have jurisdiction on matters related to non-
compoundable offences. There is no court fee and no rigid procedural requirement (i.e. no

36
Supra note 5.
37
Conciliation. Available at: https://www.legalindia.com/justice-dispensation-through-alternate-dispute-
resolution-system-in-india/ (Visited on October 17, 2017).
38
Supra 39.

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need to follow process given by Civil Procedure Code or Evidence Act), which makes the
process very fast. Parties can directly interact with the judge, which is not possible in regular
courts.
A case can be transferred to a Lok Adalat if one party applies to the court and the court sees
some chance of settlement after giving an opportunity of being heard to the other party. The
39
focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes
back to the court. However, if a compromise is reached, an award is made and is binding on
the parties. It is enforced as a decree of a civil court. An important aspect is that the award is
final and cannot be appealed, not even under Article 226 because it is a judgment by consent.
All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat
is deemed to be a Civil Court. Main condition of the Lok Adalat is that both parties in dispute
should agree for settlement. The decision of the Lok Adalat is binding on the parties to the
dispute and its order is capable of execution through legal process. Lok Adalat is very
effective in settlement of money claims. Disputes like partition suits, damages and
matrimonial cases can also be easily settled before Lok Adalat. Lok Adalat is a boon to the
litigant public, where they can get their disputes settled fast and free of cost.

39
Ibid at 5.

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Suggestions and conclusion:


We cannot stop the inflow of cases because the doors of justice cannot be closed, but we can
increase the outflow of cases either by strengthening (both qualitatively and quantitatively)
the capacity of the existing system or by way of finding some additional outlets.
In this situation ADR mechanism implementation can be such a drastic step for which three
things are required most:
• Mandatory reference to ADRs
• Case management by Judges
• Committed teams of Judges and Lawyers
Equal justice for all is a cardinal principle on which entire system of administration of justice
is based. We cannot conceive justice who is not fair and equal. We should aim to achieve
earlier and more proportionate resolution of legal problems and disputes by increasing advice
and assistance to help people resolve their disputes earlier and more effectively; increasing
the opportunities for people involved in court cases to settle their disputes out of court; and
reducing delays in resolving those disputes that need to be decided by the courts.
To implement the noble ideas and to ensure the benefits of ADR to common people, the four
essential players (government, bench, bar litigants) are required to coordinate and work as a
whole system. Case management includes identifying the issues in the case; summarily
disposing of some issues and deciding in which order other issues to be resolved; fixing time
tables for the parties to take particular steps in the case; and limiting disclosure and expert
evidence.
• Government: Government has to support new changes. If the government support and
implements changes ADR institutes will have to be set up at every level from district to
national level.
• Bench: unless mindsets of the judges are changed, there will be no motivation for the
lawyers to go to any of the ADR methods.
• Bar: the mindset of the members of the Bar is also to be changed accordingly otherwise it
would be difficult it is difficult to implement ADR. The myth that ADR was alternative
decline in Revenue or Alternative Drop in Revenue is now realizing that as more and more
matters get resolved their work would increase and not decrease.

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• Litigants: few parties are usually interested in delay and not hesitate in taking a stand so as
to take the benefit if delay. Parties have to realize that at the end, litigation in court may prove
very costly to them in terms of both cost and consequence.
1. To help ease the pressure on these family courts, the government has to provide them with
necessary infrastructure and manpower.
2. To create awareness about the prevailing laws related to women and children.
3. To provide referral services like, free legal aid short vocational training and medical
treatment.

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Edn., Malik Justice S.B , Universal Law Publishing Company Ltd.
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Track Commercial Division in High Courts December, 2003.
• Law Commission of India, 76th Report on Arbitration act, 1940, November, 1978.
• Law Commission of India, 114h Report on Gram Nyayalayas, August 1986.
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Bench of Supreme Court
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April, 2009.
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etc, April, 2009.

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