INTRODUCTION
Conciliation is one of the effective modes of Alternative Dispute Resolution (ADR) stated in Part-III of The Arbitration and Conciliation Act,1996. It is the fastest way to resolve a dispute through mutual agreement by the parties without litigation by a Conciliator. Section 74 of The Arbitration and Conciliation Act, 1996 states that this “settlement agreement shall have the same status and effect as if it is an arbitral award on the substance of the dispute rendered by an arbitral award under section 30”. The Judiciary has to deal with a huge number of cases. To reduce this burden of cases, The Family Courts Act, 1984 and The Hindu Marriage Act, 1955 make it mandatory that parties should try to resolve their family and marriage related disputes first by Conciliation without approaching the court. This helps to keep the righteousness of marriage and the family.
ALTERNATIVE DISPUTE RESOLUTION(ADR)
Alternative Dispute Resolution denotes different ways by which parties can resolve their disputes outside the Court without a trial or even within Court. This is one of the fastest ways for settling disputes by a neutral third party.
MODES OF ALTERNATIVE DISPUTE RESOLUTION(ADR)
The different modes of Alternative Dispute Resolution (ADR) are:
- Arbitration,
- Conciliation,
- Mediation,
- Negotiation,
- Lok Adalat,
- Judicial Settlement.
WHAT IS CONCILIATION?
Conciliation is one of the non-binding procedures of Alternative Dispute Resolution (ADR) to resolve a dispute between the parties through an independent third party called the Conciliator.
Section 62 of The Arbitration and Conciliation Act,1996 describes the Conciliation Proceedings. According to this, one party who initiates Conciliation, sends the other party a written invitation mentioning the subject matter of the dispute. The proceedings will commence only after acceptance of the written invitation by the other party. If the other party does not send any reply to the invitation within thirty days of the invitation, it amounts to rejection of the invitation and there will not be any commencement of conciliation proceedings. Then the party initiating conciliation shall convey about the rejection in writing to the other party.
ROLE OF CONCILIATOR IN CONCILIATION
Section 67 of The Arbitration and Conciliation Act,1996 defines the role of conciliator in Conciliation. According to the Section, the conciliator is an independent and impartial person to assist the parties in resolving a dispute through amicable settlement. The conciliator arranges the conciliation proceedings according to the principle of fairness and justice, objectivity including any request by a party for speedy settlement of the dispute. The proposals for settlement of disputes can be oral and depend upon the circumstances of the case.
Section 80 of The Arbitration and Conciliation Act,1996 describes the Role of Conciliator in other proceedings. According to this Section, the Conciliator shall not be the arbitrator or representative or counsel of a party where the dispute is the subject-matter of the Conciliation proceedings. The Conciliator shall also not be the witness in any judicial proceedings.
ADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION
- Speedy Disposal of Cases-
Alternative Dispute Resolution (ADR) is one of the fastest methods of disposal of cases without going to a trial. It is the most time saving way to resolve disputes between the parties. Because of this Courts refer Alternative Dispute Resolution (ADR) through a concerned person or Authority competent of it.
- Affordable Expenses –
With speedy disposal Alternative Dispute Resolution (ADR) is cheaper than litigation because litigation involves more expensive Court fees, Advocate fees and other expenses also. Thus, it is a cost-efficient procedure to afford. So, with time saving, ADR is also money saving process.
- More Flexible-
Alternative Dispute Resolution (ADR) is more flexible than litigation. Date of a trial may vary but ADR can be scheduled according to the convenience of the parties. This helps parties a lot in ADR while in litigation, on a date of trial parties must come for the disposal of the case that day. So, it is more convenient as well as an efficient process.
- Maintains Privacy-
In trial there is a public record, while in ADR privacy of the concerned parties is always maintained. ADR is private as well as confidential. There is not any public record of ADR. For this, parties can opt for ADR to maintain privacy.
- Improving Relationships-
ADR helps in maintaining and improving relationships between the parties though conversation and communication of them. This is very much essential while resolving disputes in family related and matrimonial issues.
DISADVANTAGES OF ALTERNATIVE DISPUTE RESOLUTION
- Less Precedent-
In ADR, there is no legal precedent to make the procedure more certain. This is one of the disadvantages of Alternative Dispute Resolution (ADR).
- Inconsistent-
Different approaches may be adopted in resolving the same kind of disputes. So, ADR processes are inconsistent depending upon different methods for resolving a dispute.
- Imbalance of power between the parties-
ADR does not always provide fair resolution where there is imbalance of power between the parties. In such a case, the decision is in favour of one party because of dominance over another party. This does not happen in litigation.
- Not Enforceable-
Alternative Dispute Resolution (ADR) is not enforceable always. This is one of the disadvantages for non-compliance of terms of the agreement by one party; the other party can’t approach the court for enforcement of the agreement.
- Not Appealable-
Alternative Dispute Resolution (ADR) is not always appealable. So, the parties can’t go against the decision given.
PROVISIONS IN THE CODE OF CIVIL PROCEDURE, 1908 FOR SETTLEMENT OF DISPUTES THROUGH CONCILIATION AND ALTERNATIVE DISPUTE RESOLUTION
Section 89(1)(b) of The Code of Civil Procedure, 1908 deals with settlements of disputes outside the Court by Conciliation after determination of the terms of the settlement by the Court. There must be elements of settlement to resolve the dispute and the parties must submit their observations to the Court. Section 89(2)(a) states that if proceedings are referred for settlement of disputes the provisions of The Arbitration and Conciliation Act, 1996 must be complied with.
Order X Rule 1A of The Code of Civil Procedure,1908 supports the provision and states that for settlement agreement the court shall fix the date of appearance of the parties of settlement before the forum or authority chosen by the parties after consideration that the suit can be resolved through mutual settlement.
Order X Rule 1B of The Code of Civil Procedure, 1908 states that after fixation of the date of appearance of the parties for Conciliation, the parties shall be present before the forum or authority for mutually resolving the dispute.
Order X Rule 1C of The Code of Civil Procedure, 1908 gives power to the presiding officer to redirect the same suit to the court if the presiding officer considers that forum or authority isn’t proper to deal with the matter in the interest of justice.
Order XXXII-A of The Code of Civil Procedure, 1908; substituted by an amendment in 1976 deals with suits relating to family matters including matrimonial disputes. Rule 3 of this Order validates the mutual settlement between the parties concerning family disputes relating to matrimonial reliefs, suit for determination of legitimacy of a person, maintenance, adoption, wills, intestacy and succession, matters relating to personal law etc. but not matter by a special law.
Thus, the Civil Law allows Conciliation for settlement of disputes as one of the effective means of Alternative Dispute Resolution.
PROVISIONS IN SPECIAL MARRIAGE ACT, 1954 RELATING TO SETTLEMENT OF DISPUTES THROUGH CONCILIATION
Section 34(2) and Section 34(3) of The Special Marriage Act, 1954 provides conciliation between the parties with report of the case in matters relating to divorce by the husband or wife on the ground that the respondent is
- in jail for seven years or more for an offence,
- suffering from an incurable mental disorder that the petitioner becomes unable to live with the respondent,
- suffering from leprosy,
- declared as dead because of not being alive for seven years or more.
PERSONAL LAWS
- The Hindu Marriage Act, 1955:
Section 23(2) of The Hindu Marriage Act, 1955 deals in every case relating to the same grounds of Divorce as stated above in Section 34(2) of The Special Marriage Act, 1954 the Court will grant mutual settlement of disputes to the parties and Section 23(3) of The Hindu Marriage Act, 1955 deals with the disposal of the proceedings with report of the case following directions of the Court as mentioned in Section 34(3) of The Special Marriage Act,1954.
- Muslim Personal Laws
Before the grant of Talaq, the Quran specifies a reconciliation process involving 4 steps in the time of divorce. This process involves mutual conversations between husband and wife and after the conversation if still misunderstanding persists between them there will be temporary separation of husband and wife.
PROVISIONS LAID DOWN IN THE FAMILY COURTS ACT,1984 FOR SETTLEMENT OF DISPUTES THROUGH CONCILIATION
The Family Courts Act,1894 was established for quick disposal of family and matrimonial cases with conciliation. Section 9 of The Family Courts Act, 1984 grants duty to the family court for mutual settlement of disputes between the parties deciding the subject-matter of the case convenient for settlement.
COURT DECISIONS REGARDING SETTLEMENT OF FAMILY DISPUTES THROUGH CONCILIATION
In the case of Gaurav Nagpal v. Sumedha Nagpal,2008 the Supreme Court of India held that effort should be to bring about conciliation to bridge the communication gap which leads to undesirable proceedings. Courts should try to bring about Conciliation unless it has an inevitable result.
In the case of Bini v. Sundaran,2007 it was held by Kerala High Court that The Family Courts Act, 1984 was introduced to provide for the establishment of Family Courts with a view to promote Conciliation in and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith.
Calcutta High Court in the case of Shiv Kumar Gupta v. Lakshmi Devi Gupta, 2005 (1) HLR 483 held that the Judge has a statutory duty to try matrimonial cases under Section 23(2) of The Hindu Marriage Act,1955.
In the case of Jagraj Singh v. Bir Pal Kaur, JT 2007 (3) SC 389 it was held that before proceedings to grant any relief in the first instance the Court should try to bring about reconciliation between the parties under Section 23 of The Hindu Marriage Act, 1955 where a petition for divorce is filed under Section 13 of the Act on certain grounds.
In the case of Salem Bar Association v. Union of India (2003) (1) SCC 49, it was held that all High Courts of the Country should adopt the Model Rules of ADR with necessary modifications.
CONCLUSION AND RECOMMENDATIONS
Conciliation as one of the effective modes of Alternative Dispute Resolution (ADR) increases the need of family courts for speedy disposals of family and matrimonial disputes. Efficient experts must be assigned in those courts for effective Alternative Dispute Resolution Processes. As Conciliation is a time and cost-efficient process most of the family disputes in villages can be settled at grassroot level. This process should be adopted at a higher level to make the judiciary free from overburdening of cases through litigation especially in resolving civil cases related to family and matrimonial affairs. In those cases, without going for a trial the parties must approach a suitable authority or person for amicable settlement of disputes mutually. This also enhances friendly relationships especially in business related affairs by effective means. So, Conciliation for resolving family disputes is not only effective but also appreciated at all.
Authored by- Krishna Sur, The University of Burdwan
REFERENCES
- The Arbitration and Conciliation Act,1996
- The Code of Civil Procedure,1908
- The Hindu Marriage Act, 1955
- The Special Marriage Act, 1954
- The Family Courts Act
