Family is said to be the basic unit of society, which develops society through the chain of relationships. According to Sociologists, the family is an intimate domestic group of people related to one another by bonds of blood, sexual mating, or legal ties. To constitute a family, the basic need is a meeting of two opposite sexes and tying themselves into the knot of marriage.

The institution of marriage is an important pillar of a healthy society. As time passed away the institution of marriage and family seemed to be weakening and more prone to breakdown. These days divorce has become a very common way to break down a marriage. The process of getting a divorce is so time-consuming and hectic that it breaks down the parties to the divorce physically as well as mentally. It creates more psychological tension between husband and wife. In the 21st century, India is witnessing an increase in the rate of divorce which has created a burden on the already burdened judiciary.

Though after the passing and enactment of the Family Courts Act 1984, family courts were established in India to deal with family dispute matters but the heavy load can be seen on them. So, to reduce the stress on courts, and parties to the dispute a new form has been introduced in the Indian legal system i.e. Alternative Dispute Resolution.

To understand the system of Alternative Dispute Resolution, the term 'dispute' & family dispute should also be defined. So, - Marc Galanter, observes that

"Disputes are not discrete events like births or deaths; they are more like such constructs as illnesses and friendships, composed in part of the perceptions and understandings of those who participate in and observe them. Disputes are drawn from a vast sea of events, encounters, collisions, rivalries, disappointments, discomforts, and injuries. The span and composition of that sea depend on the broad contours of social life. The disputes that arrive at courts can be seen as the survivors of a long and exhausting process."1

Family Dispute

Family dispute means arising tensions in family relationships such as between wife and husband, children, and parents, between siblings or relatives, in respect of their personal or property rights.

Kinds Of Family Disputes

1. Domestic Disputes: A domestic dispute is generally any quarrel, which may or may not include violence, within a family or between members of the same household. The victims of domestic disputes may be children, old persons, an adult man/woman, a spouse, a cohabitant, a former spouse, or a former cohabitant. It may or may not include criminal behavior.
    
2. Restitution of Conjugal Rights: It is a kind of dispute when one of the spouses withdraws from the association of the other spouse without any reasonable cause. The aggrieved party has to approach the court of law. This is the first stage of legal remedy which can be sought by the parties. This remedy intends to protect the institution of marriage and tries to bring reconciliation between the spouses.
    
3. Break Down of Marriage: There exist typical situations where the marriage has all the external appearances of marriage, but none of the reality. The marriage becomes merely a shell out of which the substance is gone. In such circumstances, there is hardly any utility in maintaining the marriage as a façade, when the emotional and other bounds which are of the essence of marriage have disappeared.
    
4. Testamentary and Intestate Property Issues: If a person dies leaving behind a 'Will' bequeathing his properties in favour of certain beneficiaries, then all his/her legal heirs shall be bound by such 'Will' and the properties shall be distributed as per the directions stipulated in the 'Will'. This type of succession of property is known as Testamentary Succession, and it is governed by the Indian Succession Act, of 1954. On the other hand, Intestate Succession is one where a person dies without leaving any 'Will', and the property left by the deceased shall devolve upon his/her legal heirs by the personal law applicable to him.
    
5. Child Care and Custody: The parents and legal guardians have a legitimate right to child care and custody. In cases where there are disputes between the wife, husband, and other guardians as to the custody of the child or where the child is abandoned or an orphan, the court follows the principle that "Welfare of the child is the supreme lex" and paramount consideration is given to the wellbeing of the child.

History of ADR
India
Ancient era - ADR is not a new concept for India. It has been prevalent in India since Vedic times. The 'Bhradarnayaka Upnishad' is the earliest text which shows various types of arbitral bodies like puga, sreni, and kula, also called as panchayats which take into account the disputes of matrimonial, contractual, and criminal nature.

As time passed, ADR started to be practised in the form of gathering discussions, panchayats, family councils, courts appointed by the kings, etc. It was considered as a cheap and easy way to obtain justice. Even minor disputes like property and trade disputes were resolved by the method of ADR. Village-level disputes were resolved by the village elders called as an informal way of mediation.

Types Of Ancient Courts

1. The Kula (Family Councils): Elders of the family hear the conflict and provide the solution for the same. The elders are usually of the same background as that of families.
    
2. The Shreni (Trade or Professional Councils): A group of professionals, traders, craftsmen, etc. who are unbiased and knowledgeable are chosen as arbitrators.
    
3. The Gana (Panchayats or Village Assembly): A village of people chooses a person, usually the elder most person of the village, with some more trustworthy and knowledgeable people who hear the matter of two parties and try settlement.
    
4. Adhikrita (Courts appointed by Kings): These were the courts recognized by the king which consisted of justices trained in Shastras and Smrithis.
    
5. Sasita (Kings Court): It was the highest court of law of a kingdom which was presided by the king himself and for the support of the king, chief justice and a group of judges were appointed.
    
6. Nripa (King himself): The Supreme authority of the kingdom in judicial matters was the King who could not be contracted by anybody.

British Era -The Bengal Resolution Act, of 1772 and the Bengal Resolution Act of 1781 were one of the first legislations formed for arbitration. It provided with parties a binding settlement with the mutual consent of both parties. Basic cases related to matters of debts, partnership, accounts, non-performance of contract, etc. Various other legislations like the Regulation XV of 1795(for Madras) and Regulation XXI of 1803 (for the territory of Nawab Wazir) also came into existence.

Under British Rule, the Indian Arbitration Act, of 1899 was introduced as the first Indian legislation regarding ADR and there it was provided- the matters that would be settled by agreement between parties and did not require court supervision, and everything else was left to the purview of Schedule 2 of Code of Civil Procedure, 1908.

The next legislation was the Arbitration act of 1940 which resulted in time-consuming, complicated, and expensive proceedings. Hence, it was repealed and The Arbitration and Conciliation Act 1996 came into existence.

World
The practice of alternative dispute resolution as we know it now began in England in 1066. To settle personal conflicts, the English held their own informal court. These unofficial gatherings were frequently presided over by respected men in the neighborhood. Sometimes the king would follow the citizens' judgment rather than hearing the case in his court.

One of the earliest types of arbitration was this one. Mediation was more common than traditional lawyers and courts in the American Colonies. Prior to the creation of the Federal Mediation and Conciliation Service (FMCS) in the 19th century, arbitration was mostly utilized to resolve patent disputes after the United States attained independence. Congress then passed the "Federal Arbitration Act" in the 1920s. It gained popularity over the course of the 20th century.

Origin of ADR globally
We should examine our anthropological and sociological research to get a sense of how early humans may have settled conflicts without relying on fists, clubs, or spear arrows if we want to understand the origin of ADR. The following methods for resolving disputes differ significantly from those used now in many instances. However, these ancient methods gave rise to the modern methods that we employ today.

1. Hawaii
   Polynesian-ancestry Hawaiian Highlanders employed their own ancient system for peaceful dispute resolution. It featured a family getting together to talk about interpersonal issues while being led by a leader. Both parties respect the session's leader, who serves as both the session's facilitator and a mediator.
    
2. China
   Because of its traditional views on conflict resolution that derive from Confucian ideals, China embraced mediation relatively early. According to Confucius, harmony should not be disturbed, and conflicting legal actions are the polar opposite of harmony. Given the focus on harmony, Chinese mediators have had a significant impact. Chinese mediators don't just resolve conflicts; they also give advice to the parties regarding how to coexist in harmony going forward.
    
3. Greek
   The history of ADR in the West can be traced back to the time of the ancient Greeks. One well-known arbitration tale has been passed down through myth. Surprisingly arbitration process was formal. An arbitrator for a certain case was selected by a lottery.

His first responsibility was to make efforts to settle the dispute amicably. In the event that this didn't work out, the parties would then present written evidence and call witnesses. Having said that, the parties frequently used various ruses to delay decisions or contest the arbitrator's findings.

The Arbitrators would hear an appeal, and they would then send the situation to the courts. Demosthenes once claimed in such an appeal that a man named Midias had spoken impolitely to him.

At a young age, this result could appear like a setback, but it can also be considered as a self-control mechanism. Later, a traditional supported the board's decision to reprimand the arbitrator. It appeared that the system had worked.3

Why Do We Need It?
As per the data released by the Indian Government in 2016 in the Rajya Sabha4, which stated about the pending cases of family disputes in 10 major states and UT of India. The data consisted of states like-

States:
No. Of Pending Cases
% Accounted

Uttar Pradesh
271708
40.43%

Kerela
55050
8.19%

Bihar
42980
6.4%

Madhya Pradesh
34165
5.08%

Maharashtra
32361
4.82%

Gujarat
29445
4.38%

Delhi
29122
4.33%

Karnatka
24612
3.66%

Rajasthan
21974
3.27%

Odisha
21856
3.25%

From the above data of 2016, the top 5 states accounted for 64.92% of the total number of pending cases in family courts in India. Hence, the above data shows the long list of pending cases and the burden on the family courts to resolve these disputes.


Alternative Dispute Resolution
The term Alternative Dispute Resolution means adopting a method other than the court-trial method in which the dispute of the parties is settled by a third neutral person or by the parties themselves, outside the court. It includes arbitration, negotiation, conciliation, and Lok Adalat a mixture of arbitration and mediation. Mediation, arbitration, and conciliation are the three important pillars of this mechanism which are discussed below in detail.

The process established its roots in family disputes after the mid-1970s. With the change in time and increase in the number of cases the method of ADR became more popular because it gives freedom from the long courtroom trials and is economically suitable to the parties. Moreover, mediation is considered the first choice of the parties to the dispute to resolve the issues, especially in case of family disputes.

ADR And Its Types:
Alternative dispute resolution can be divided into two types:

1. adjudicative and
2. non-adjudicative.

The adjudicative process consists of a third neutral party who imposes a decision on the parties who are in conflict, whereas in non – adjudicative process neutral third party helps the parties reach their agreements a third party can be said as the supporter of both parties which leads them to the consensus.5

Forms Of ADR
ADR consists of arbitration, mediation, conciliation, and negotiation:

• Arbitration:
  It is a private process where disputing parties agree that one or several individuals can decide the dispute after receiving evidence and final arguments.6 It stands in the place of trial and is also subject to limited judicial review. The method is said to be one of the best methods to resolve the dispute because parties to the dispute can opt for a person who is a scholar in that particular field in case of family dispute parties can go for a person who is well-versed in family law of their own choice. It is a cost-efficient and convenient method of resolving a dispute.
  
  The hearings of arbitration do not take place in the open court system and also its transcripts are not available for the general public record. This can be very valuable for parties in some cases who specifically seek the privacy of their dispute. It has the limited right of appeal means that there will be no ongoing trials and delays before resolving the matter. It is an adjudicative type of ADR.
   
• Mediation:
  Mediation also continues to be a popular method of resolving family disputes. According to the American Arbitration Association and the Society for Professionals in Dispute Resolution, Mediation is defined as:
  "a process in which an impartial third party, a mediator, facilitates the resolution of a dispute by promoting voluntary agreement by the parties to the dispute. A mediator facilitates communications, promotes understanding, focuses the parties on their interests and seeks creative problem solving to enable the parties to reach their agreements."7
  
  Mediator's role is not to resolve the issue but to let parties negotiate the issue and reach an agreement. In the issue of child custody and maintenance, mediation has proven to be the best method to resolve the dispute. In mediation the dispute can be solved quickly by the parties in most cases it takes 2-3 sittings and the dispute is resolved.
  
  The relationship existing between the parties remains intact and there is no rupture or disruption of the friendly ties between them. Mediation has commonly resorted in family disputes, disputes between partners in a firm, etc. where preserving the tie or relationship is highly important. Mediation is less stressful than the other methods the reason behind this is the amicably resolving of disputes by the parties.
  
  The general understanding is that communication between the stakeholders is always the first and most important step in familial disputes. Much responsibility lies with the adjudicator here, and so a mediator who can invest time in understanding the nuances of the dispute to facilitate communication and collaboration between the parties is of utmost importance. It is also important to appreciate that mediation does not require lawyers to be present.
   
• Conciliation:
  It is a non-adjudicatory process. It is a party-cantered negotiation and consent of the parties is mandatory. It is a voluntary proceeding. The agreement is also enforceable by the decree of the court under section 74 of the Arbitration and Conciliation Act 1996. It is an optimal option for dispute resolution whether it is pre or post-litigation In the case of Gaurav Nagpal v. Sumedha Nagpal8 the Supreme Court has observed that efforts should be made at conciliation and in bridging communication gaps so that people do not rush to the courts. The process also provides flexibility, and time, to the structure of the proceedings to the parties.

Case laws
From time to time the Indian Judiciary through its judgments has tried to put more and more emphasis on the use of alternative dispute resolution methods. So, here below are some leading cases related to this-

• Bini v. K.V.Sundran9: In this case, the hon'ble court addressed the question of whether conciliation is mandatory after the introduction of the Family Courts Act, 1984, even on the excepted grounds of conversion to another religion, renunciation of the world, mental disorder, venereal diseases, and leprosy. The court held that, "the primary object is to promote and preserve the sacred union of parties to the marriage. Only if the attempts for reconciliation are not fruitful, the further attempt on agreement on disagreement may be made by way of settlement."
   
• Shiv Kumar Gupta v. Lakshmi Devi Gupta10: This case found that compliance with section 23(2) of the Hindu Marriage Act, 1955, is a statutory duty of the judge trying matrimonial cases.
   
• Rajesh Kumar Saxena v. Nidhi Saxena11: The Allahabad High court held that it is the bounded duty of the family court to make an attempt for conciliation before proceeding with the trial of the court.
   
• Mohd. Mushtaq Ahmad v. State12: In this case, the wife filed a divorce petition alongside an FIR against the husband under Section 498A of IPC after disputes arose between the couple.

subsequent to birth of a girl child. The Karnataka High Court directed the parties to mediation under Section 89 CPC. The matter was settled amicably through mediation after which the wife decided to quash the FIR. The Court allowed this stating, "The court in exercise of its inherent powers can quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice." 5. In Gurudath K. v. State of Karnataka13, the facts are identical to the case above.

Here the court stated:
"Even if the offenses are non-compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably Section 320 CrPC would not be a bar to the exercise of the power of quashing of FIR or criminal complaint in respect of such offenses." Thus, the court allowed for the offenses to be compounded on coming to the conclusion that the wife was under no threat or coercion for the same.

Recent Trends/ Development
As the concept of Alternative Dispute Resolution is evolving day by day, especially in India it has witnessed immense growth. also, family disputes nowadays are considered to be resolved easily through ADR methods. A report Published by Vidhi Centre for Legal Policy in 2016 revealed that out of 46000 cases of mediation that were referred by the court, 41,503 were family dispute cases that were referred for mediation. The period of 2011-2015 experienced 25000 cases of family disputes that were referred to mediation.

This was almost 80% of the total cases referred to mediation in the said time frame14. The references included cases under the Dowry Prohibition Act, maintenance application cases under Section 125 of the Code of Criminal Procedure, 1973, the Protection of Women from Domestic Violence Act, Guardians and Wards Act 1890, and other divorce matters.

New Initiatives
As the ADR is becoming more and more favourable to the people as well as to the authorities. So, several new initiatives are also being taken up by the authorities to resolve family disputes at the initial levels. One such initiative is taken up by the Gautam Buddha Police in collaboration with the Sharda University Noida, that is the Family dispute Resolution Clinic for a period of 6 months.

The FDRC conducted research work as well as mediation to resolve disputes at last its results were commendable. The success rate of the clinic was 88%, the clinic conducted 350 sessions to resolve 119 cases, and out of these 105 cases were disposed of and 11 cases were there where the parties entered into a legal battle15.

FDRC addresses disputes related to families and most of them are martial dispute, apart from martial dispute FDRC also addresses disputes filed by daughter, mother, senior citizen where counseling and mediation is required. As per the Law mediation can be provided at stage of dispute. FDRC provide mediation at a very initial stage where are yet to enter a legal fight and that's why the scope of resolution is also wide. FDRC provides Pre-FIR mediation with the voluntary consent of parties.

Comparative Study

Arbitration

1. Neutral Third Party- An adjudicator is present, to help the parties to resolve the dispute.
2. Nature of proceeding- it is legally binding.
3. Level of formality – it is formal, a proper system is followed.
4. Level of Confidentiality- the level of confidentiality is kept as it is determined by the law.
5. Legal Framework in India- The Arbitration and Conciliation Act 1996.
6. Arbitration is used by the parties to submit one or more issues existing out of their family disputes and then it is resolved by the neutral third party.

Mediation

1. Neutral Third Party- a facilitator is present. The role of the facilitator is to focus on the collaboration of the parties by understanding the feelings of both parties.
2. Nature of Proceeding- not legally binding.
3. Level of formality- it is informal.
4. Level of Confidentiality- Confidentiality is based on trust.
5. Legal Framework in India- Section 89 of CPC, 1908, and Mediation Rules 2015 by the Supreme Court of India.
6. More family disputes are referred to mediation than any other dispute. Due to the personal nature of the dispute, sentiments and emotions, technical, mere legal principles do not apply to them. It is also a faster process than litigation, which is notorious for carrying on for years at end. With this cost and time effectiveness, mediation becomes ideal for family law disputes.

Conciliation

1. Neutral Third Party- a facilitator or evaluator is present.
2. Nature of Proceeding- not legally binding.
3. Level of formality- it is informal.
4. Level of Confidentiality- confidentiality is determined by the law.
5. Legal Framework in India- The Arbitration and Conciliation Act 1996. It is enforceable as the decree of the court as per Section 74 of the act.
6. Conciliation is provided to both spouses and can take place if both agree to it. It generally focuses on the practical and emotional needs of separating couples or separated couples. Another thing is that it also focuses on children and a neutral conciliator tries to make parents aware of their needs and also tries to accommodate the family together. It also provides a safe and private forum in which emotions can be released, and common ground tested out, without prejudice to subsequent court proceedings.
    

Comparison Between ADR And JDR

Alternate Dispute Resolution:

• Win-win situations can be formed by negotiations. Both parties of the family can come to a conclusion which is acceptable to both regarding on the amount of compensation, custody of children etc.
• Focus on fulfilling interest of both parties. The advisor or mediator focuses on needs and suitability of both parties.
• Usually flexible and informal method and future oriented. Withdrawal of case can happen at any point of time. Both parties and their family members can set up a suitable time and place for negotiations.
• Confidential negotiations unless required by law and no public order to be maintained. This led to saving the image of the family and keeping the negotiations private.
• Usually not legally binding.
• Adversarial in nature- Arbitration, Collaborative in nature- Mediation.
• Personal and active participation of parties. Both parties present their views and have direct interaction with each other.
• Cost effective. Cheaper than the litigation process.
• Fast resolution of disputes than litigation.
• Time and place of proceedings are according to the convenience of both parties.

Judicial Dispute Resolution:

• Pre-trial settlement process which involves judges as settlement facilitators.
• Less formal than trial proceedings.
• Both parties and their lawyers attend the proceedings in judge's chamber.
• Confidential process and privileged documents are formed.
• Adversarial in nature, as focus is on past events and determination of rights and liabilities of parties.
• Personal appearance or active participation of parties is not always required.
• The decision is binding on both the parties.

Conclusion:
In conclusion, alternative dispute resolution is an excellent way to reach an agreement between the parties that is fair to both of them and gives each party what they are entitled to. Alternative Dispute Resolution makes it simple to address problems since it is very affordable, quick, expert, accessible, and provides conciliation between parties.

It also involves less formality and is less combative. ADR puts a lot of pressure on parties, especially during conciliation. This is so that potential solutions can be suggested and Alternative Dispute Resolution can play a more interventionist role. It is past time to encourage the use of ADR procedures, and the government can improve the current status of ADR in the nation by providing legal backing, training staff, and other measures.

Additionally, ADR procedures can be combined with digital platforms, and conducting ADR online can be helpful because it will stimulate delayed dialogue between the parties throughout the process, making it simpler to settle a disagreement amicably. Every time a family conflict occurs, it not only ruins the family but also has an impact on the executive branch, the court system, and society as a whole.

The family courts, which attempt to resolve all family conflicts through mediation and collective bargaining, need to be given more authority. Additionally, further family courts must be established in order for family courts to be sufficient to resolve all family related cases and burden on judiciary is reduced

End-Notes:

1. Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about our allegedly contentious society, UCLA Law Review, October, 1983 - August 1984
2. Utsav Mandal, Ancient Judicial System, https://www.legalserviceindia.com/legal/article-7176-ancient-judicial-system.html, visited on 11 February 2023.
3. Astha Dhawan, ORIGIN OF ADR ACROSS THE GLOBE https://viamediationcentre.org/readnews/MjY3/Origin-of-ADR-across-the-globe, visited on 10 February 2023
4. Number of cases disposed of in Family Courts and Number of courts Functional from 2013-14 to 2015-16 (From: Ministry of Law and Justice)
5. Leonard L. L, New Forms of Resolving Disputes-ADR, Family Law Quarterly, Fall 1999, Vol. 33, No. 3 (Fall 1999), pp. 581-588
6. https://openstax.org/books/business-law-i-essentials/pages/2-3-arbitration, visited on 7 February 2023.
7. Leonard L. L, New Forms of Resolving Disputes-ADR, Family Law Quarterly, Fall 1999, Vol. 33, No. 3 (Fall 1999), pp. 581-588.
8. Gaurav Nagpal v. Sumedha Nagpal AIR 2009 SC 557.
9. Bini v. K.V.Sundran AIR 2008 Kerala 84.
10. Shiv Kumar Gupta v. Lakshmi Devi Gupta 2005(1) HLR 483.
11. Rajesh Kumar Saxena v. Nidhi Saxena 1995(1) HLR 472.
12. Mohd. Mushtaq Ahmad v. State (2015)3 AIR Kant R 363.
13. Gurudath K. v. State of Karnataka Criminal Petition No. 7258 of 2014.
14. Kamakshi Puri, Mediation in Family Law Disputes in India, https://www.mappingadr.in/post/mediation-in-family-law-disputes-in-india, visited on 9 February 2023.
15. Meenakshi Sinha, Complaints pour in, police to start clinic to resolve couples disputes, https://timesofindia.indiatimes.com/city/noida/complaints-pour-in-police-to-start-clinic-to-resolve-couples-disputes/articleshow/76633982.cms, visited on 8 February 2023.

Written By: Sejal And Pranav