September 23, 2023
Alternative Dispute Resolution is a legal process outside the Court. In India, there are lots of pending cases before the District Courts, High Courts and Supreme Court which creates a lot of pressure on the Courts. Alternative Dispute Resolution is a process to resolve the dispute outside the court in less time and cost.
According to Justice R C Lahoti, “Alternative Dispute resolution mechanisms especially agreement and conciliation should play a major part in setting disputes, as it would save energy, time and money of the petitioners, particularly in family matters.” Nowadays alternative dispute resolution has become popular as it is proven to be a cost-effective and less time-consuming method in the legal process.
Alternative dispute resolution is an amicable settlement of disputes because it allows the parties in disputes to settle their matter themselves. The process of alternative dispute resolution is different from the adjudication process. The alternative dispute resolution techniques mainly include arbitration, mediation, and negotiation. In India, Lok Adalat is another form of alternative dispute resolution. ADR gives a satisfying experience to the parties involved in the disputes because this process is more informal than a court proceeding. The court proceedings are very technical in nature as compared to the process of alternative dispute resolution. The alternative dispute resolution mechanism system can help to achieve:
1. Affordable and speedy trial with less technical process.
2. Settlement of dispute through negotiation.
Arbitration: It is an alternative dispute resolution that takes place outside the court. It is less formal than a trial. Here the parties instead of taking a judge, take the matter of disputes before an Arbitrator. So Arbitration is a procedure in which a dispute is submitted by the agreement of the parties to one or more arbitrators who will make a binding decision. In the arbitration process the evidence which are not acceptable in the court can be admissible here that is Hearsay. After reviewing the disputes from both the parties the Arbitrator will make a final decision which is binding in nature.
Mediation: It is an Alternative Dispute resolution process where a neutral third party that is a mediator tries to settle the disputes with the consent of both parties. It is a process where two or more people involved in disputes come together to try and find a fair and workable solution to their disputes.
Conciliation: Conciliation is an alternative dispute resolution process where the parties of a dispute use a conciliator, who meets with the parties separately in order to resolve their differences.
Negotiation: This process is similar to mediation. It is a procedure where the parties to the disputes will themselves settle their disputes. This process allows the parties to exchange their ideas, identify their differences and find a solution.
The other process is Lok Adalat which is governed by the Legal Service Authority Act, 1987 named the People’s Court. It uses the method of negotiation, mediation and conciliation as a tool to settle the dispute between the parties. Lok Adalat has been given the power of a civil court under the Code of Civil Procedure. Sec 89 of the Code of Civil Procedure,1908 states that if it appears to the court that there are some elements of settlement which may be acceptable to the parties, the court shall formulate the terms and conditions of settlement and give them to the parties for observation. After receiving the observation of the parties in disputes, the court may settle the matters of dispute through- arbitration, mediation,conciliation, and judicial settlement including settlement through Lok Adalat.
Families may at certain times face difficulties like broken relationships between husband and wife, child custody,monetary support for children and property agreement.
The marriage law that is applicable to the whole of India is The Hindu Marriage Act, 1955. It applies to any person who is a Hindu, Jain Sikh or Buddhist that is anyone who is a non Muslim, Christian, Parsi or Jew. The other law is the Hindu Succession act, 1956(an act which tells about the intestate succession among Hindus). The Hindu Minority and Guardianship Act, 1956(law relating to minority and guardianship among Hindus).The Special Marriage Act, 1954 is for registration and divorce of a special type of marriages. The Parsi Marriage and Divorce act of 1936 relating to the marriage and divorce among the Parsis in India. The Muslim Personal Law etc,these are the family law relating statutes. So though there is a well organized judicial system in India, suits especially of family matters suffer delay and are very expensive. Actually the litigation does not always give a satisfactory result to the parties. As the alternative dispute resolution system are not as expensive as litigation and not as time consuming as litigation, it maintains the relationship between the parties by encouraging communication and collaboration.
All matters which is related to the subject matters of civil litigation where the civil courts has the right to take cognizance under section 9 of the Civil Procedure Code, 1908 may be referred to as arbitration. But an arbitrator cannot grant divorce and other property related issues. Sec 89 of the Civil Procedure Code is applicable in case of ADR. It gives opportunity to the parties for an amicable solution of their disputes.
The Alternative Disputes Resolution is an effective method of resolving the disputes in most of the Civil matters through arbitration, mediation, conciliation or negotiation. Marriage is sacrament and a tie between a husband and wife. So sometimes mere negotiation can help them to solve their dispute which could not be done by the technical litigation. So alternative disputes resolution can be very effective for the family related disputes too.