This article is written by Vivek Maurya from ICFAI Law University, Dehradun. This article describes the arbitration process for divorce and how it is different mediation.

Introduction

When a couple decides to end their marriage, conflicts arise that must be resolved as part of the divorce decree. Property distribution, child benefits, and child support are some of the issues that require attention so that each party can continue living their own lives. Resolving these issues and getting a divorce can happen without the lengthy and costly process of litigation. More couples than ever are now choosing alternatives to litigation to end their marriage.

If litigation requires multiple court dates and a formal process is required for the judge to decide on a dispute, alternative methods such as arbitration may provide a more customized way to annul the marriage. Both of these methods are simpler, faster, and less costly than litigation. Before deciding between litigation or arbitration, it is important to consult an expert legal advisor.

Arbitration

Meaning of arbitration

Arbitration is a form of alternative dispute resolution (ADR), which means it is a way for opposing parties to find a solution to a problem without litigation. The parties present their sides with any evidence that may be relevant and then the arbitrator, a neutral, independent third party, reviews the facts and according to Section 31 of the Arbitration and Conciliation Act, 1996, decides on a solution called an award. Arbitral awards are binding, meaning that the decision is final and can be enforced.

Arbitration law in India has always been in practice since its inception in 1940. The Arbitration Act is a constitution of several announcements and ordinances passed by the Government of India from time to time to carry out the economic reforms taking place in the country. The Arbitration law in India is primarily enshrined in the 1996 Act, which was passed to strengthen the laws relating to domestic and international arbitration and its enforcement. Some major amendments were introduced in the years 2015 and 2019 to make arbitration a preferred method of settlement of commercial disputes and to make India the centre of international commercial arbitration. The present law is a combination of many such amendments with the latest 2019 amendment.

Benefit of Arbitration

The popularity of arbitration was acknowledged by the whole world. However, the reason for the rise in popularity was driven by the advantages of arbitration over other forms of adjudication or dispute resolution.

Saves a lot of time

The process of arbitration not only saves the time of the parties but also the courts’ time. Most civil cases take a long time for the courts to resolve the dispute. Often a generation elapses before the process is complete. Alternative dispute resolution procedures were introduced to reduce the time taken for the adjudication process. In addition, business disputes need to be resolved as quickly as possible.

Hence, families prefer to opt for arbitration to settle disputes as compared to other forms of dispute resolution. Arbitration is also a simple process in which the venue and timing of proceedings are chosen by the parties themselves.

Cost-effective

The time saved in the arbitration process also saves money involved in the process. Compared to litigation, the cost involved in arbitration is low. The quality of being cost-effective is one reason why parties prefer to use arbitration as a means of resolving their disputes.

Confidentiality

Another factor contributing to the success of the arbitration process is the importance given to the confidential information involved in the process. During the duration of the process, proper care is taken to ensure that the privacy of the parties is not compromised. The recent amendment to the Arbitration and Conciliation Act in 2019 makes the parties in arbitration duty-bound maintain the utmost secrecy of the process. Confidentiality in arbitration procedures is appropriate for parties, who want to keep their disagreement out of the public light.

Fairness

There is an element of integrity that dominates the arbitration process from the very beginning. The selection of arbitrators is a matter of the parties, the parties are heard personally in the arbitration proceedings. More importantly, the process of arbitration is established on the fact that the parties settle their disputes amicably.

Command

The parties to a dispute have more control over the arbitration process than any other dispute resolution process since the parties are in a position of control from the very beginning. The parties are directly involved in the decision-making process to enforce their agreement in the proceeding.

Procedure for filing a divorce through arbitration

Arbitration allows parties to the divorce to determine how formal or informal a process is to be used, and it also has the benefit of confidentiality. Unlike mediation, however, arbitration retains many of the characteristics of litigation. Both parties select a single arbitrator and work with their counsel to prepare for the hearing as in litigation, each party presents documents, witnesses, and other factors.

The unbiased arbitrator then decides divorce disputes, applying the actual law to the specific facts presented. One concern may be that the arbitrator’s decisions are final, and generally not reviewable by the court. Nevertheless, parties can engage in a private appellate arbitration process to acquire an additional review, like the state’s appellate division. Arbitral divorce proceedings can be completed quickly, often in just a week, with a decision usually issued within forty-five days and retain many of the benefits of litigation with each spouse having a separate governing council.

It can take one to two years for a divorce to make its way through the court system. Similarly, the parties do not have a say in which a judge is assigned to the case. What’s most troubling is that the litigation process can be lengthy, costly, and the results can be unfavourable or unpredictable. Trials are stressful and exhausting. Often a judge’s schedule leaves little time for a week to preside over a trial.

Benefits of divorce through arbitration

More and more couples who see the payment and strain involved in courtroom divorce are choosing arbitration because of the following benefits.

Arbitration is faster than a courtroom divorce

The family section of judges is overwhelmed with applications. It can take several years to get a final decision in a disputed divorce proceeding. If you are looking forward to moving on with your life after filing for divorce, you can do so by choosing arbitration. Once you and your spouse have settled on an available arbitrator, hearings can be quickly scheduled and you can decide within months.

Arbitration provides confidentiality in family matters

A judge’s decision is a matter of public record. Judges often use fictitious names for children involved in divorce or custody cases but if special circumstances do not apply, then these public judgments include the full names of both spouses. On the other hand, the decisions of the arbitrators are completely confidential.

Parties can decide the procedure

One reason that courtroom divorce lawsuits take longer than arbitration is that the trials involve many formalities. In arbitration, the parties are allowed to forego most of the tedious rules. The parties can decide what level of details should be included in the arbitrator’s decision and may do away with the rules governing what evidence is or is not admissible.

Role of arbitration in a matrimonial matter

India deals with arbitration of divorce to protect the rights of the divorcing parties which may not be possible in the case of civil courts. This is the reason why arbitration is given more preference. There are 2 main provisions of the Civil Procedure Code regarding divorce arbitration in India –

Section 89 – settlement of disputes outside the courts

The provisions under Section 89 of the Code of Civil Procedure are an attempt to resolve disputes between the parties, to reduce the cost and burden of the courts. It is designed for the sole purpose of combining legal and non-legal dispute resolution mechanisms and bringing alternative dispute mechanisms as a part of the Indian judicial system. The lengthy process of litigation, the expenses incurred by both parties, and the limited number of judges have made alternative dispute resolution an important element to ensure a fast and effective criminal justice system.

Section 89 of the Code of Civil Procedure was introduced to bring about an amicable, peaceful, and mutual settlement between the parties without the intervention of the court. In countries around the world, especially in some developed countries, the majority of cases (over 90 percent) are settled out of court. The matter/dispute between the parties will be heard by the court if there is a failure to reach a solution.

Order XXXIIA  – suits relating to matters concerning the family

Order 32A was included in the 54th Report on the Recommendations of the Law Commission in the Code of Civil Procedure. The order seeks to highlight the need to take a different approach to matters relating to problematic families, including the need for efforts to bring about a friendly solution.

The provision of this order shall apply to cases or proceedings relating to family matters – 

1. For marital relief, including a declaration as to the validity of a marriage or the marital status of a person.
2. To declare the legitimacy of a person.
3. Concerning the custody of a person with a disability or in the custody of a minor or another family member.
4. For maintenance.
5. About the legality or impact of adoption.
6. Suits established by a member of the family are related to the will and the succession.
7. Relating to any other matter relating to the family in respect of which the parties are subject to their law.

Mediation for divorce

In mediation, parties to the divorce select a mediator who oversees the direct negotiations. The parties may appear with or without consultation. The mediator will not give legal advice or order the outcome but will guide the parties to conclude.

This approach works best when the parties can communicate openly or are willing to reconcile and even help establish the foundation for a future relationship. Since it is a direct conversation, the process is completely confidential, which greatly benefits the parties discussing private financial or sensitive matters. Once an agreement is reached, a written declaration of compliance is prepared by the mediator, who often recommends that the parties consult an independent attorney who can assist in finalizing a formal written agreement.

If both parties can communicate openly, this approach allows for highly customized solutions, as the negotiation is not bound by statute or case law as it would be in litigation. “The most important thing is to choose the right mediator, that is someone professional, patient, a good interlocutor, and experienced in matrimonial matters”, said Mary E. Lihotz,  Archer’s former member of the New Jersey Judiciary. “Parties should develop trust with the mediator so that they can openly discuss the needs and concerns in settling their case”, Lihotz said.

Understanding the difference between arbitration and mediation for divorce

In mediation, you communicate with the other spouse with the assistance of a mediator. In arbitration, you present your case to the arbitrator in the hopes that they will decide in your favour.  The difference between the two is that one is a facilitated negotiation and the other is a court-like proceeding. The mediator may try to come up with new ways to help the parties resolve their disagreement. That space would not be available to an arbitrator.

Mediation is a less formal process than arbitration. It’s comparable to going to court, only you get to choose your judge. An arbitration procedure may resemble a divorce trial in appearance and feel. However, it is a method of resolving the issue without the full expense and animosity of a court-ordered divorce trial. The procedure remains judicial.

Conclusion

Worldwide, alternative dispute resolution is slowly and gradually becoming the preferred and best method for settling disputes outside the court of law. Determining the right approach for getting divorced and can be challenging to reach a result. This decision ranges from the position of the parties to financial matters and timing.

Engaging the right attorney early in the process is essential not only to represent each spouse’s interests in the proceedings, but to advise between arbitration, or litigation and to ensure the most painless dissolution of the marriage. Multiple levels of appeal also eliminate both sides and make it a burden on the system of courts. The Indian legislature is trying to bridge the gap to promote the arbitration route to be in line with the evolving global jurisprudence.

References

• https://www.latestlaws.com/marriage-and-divorce-news/why-divorcing-couples-are-choosing-alternative-dispute-resolution-over-litigation-by-archer-law/
• https://www.lawyersclubindia.com/articles/arbitration-and-its-relation-to-family-laws-7229.asp
• https://divorce.lovetoknow.com/about-divorce/what-is-divorce-arbitration

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