It has been seen in India that the number of pendency of cases in court is
increasing day by day. Where on one hand the Indian litigation process is
lengthy and takes time to get the final decree it has been seen that as the time
passes the interest of the parties also tends to get lessen.
The Indian litigation process not only takes time but is costly method as well
of getting the dispute resolved. Whereas at end of the day its parties who
decide about their matter in divorce case and that court formalities are just
for sake of getting things done it is better to opt for the easy method. In this
method parties can decide by themselves as who will get the custody of the
child, how do that want to divide the property, how the settlement option can
work out in case of monitories etc.
The Option of getting the divorce without going to court is Alternative Dispute
Resolution (ADR) such as Mediation and Arbitration, where parties can decide the
matter with the help of third person without having to go to court and also in
private and less acrimonious way.
What is Mediation?
Mediation is a process and one of the ways of ADR where parties take help of the
third person to reach toa mutually agreeable solution to the issue in their
legal separation or divorce. Mediators help both the parties to discuss the
matter peacefully where they can discuss about alimony, child custody, division
of property and all the things related to them. However, the process of
Mediation does not create any legal bindings on both the parties, but the
mutually consented outcomes can then be processed in the court as final decree
passed by the court. This process is considered to be the less expensive and
most favorable form of getting divorce in less time where in litigation process
it takes years to get the final decree through mediation in just six months of
time one can get the things done.
What is Arbitration?
Where it appears that through Mediation both the parties are not able to come on
mutually agreeable outcomes they can always go for Arbitration. Where Mediation
is not legally binding process arbitration allows for the judgements. In this
process parties need to be agreed for the choice of arbitrator (it can be in odd
numbers) who hears both the side and like the way it can be done in court and
then submits the report to tribunal. Which then in turn passes the award which
is binding legally on both the parties.
There are some Pros and Cons of the Mediation and Arbitration process such as:
- They can save money and time along with keeping the matters private and
can be less stressful for both partners and their children as well where the
custody of the child is the matter of concern.
- There is no restriction to both the parties as if they think that this
process is not working for them, they can always choose to go to the court.
- The process helps the parties to retain the control of the outcome as
there is no judge and they may resolve the matter by discussing the issue
- To get the process done successfully it is important for both the
partners to be willing to work and agree towards the solution.
- Where in court or litigation process one must show all his Assets and
Liabilities in the ADR process they can be hide easily.
- If the matter is decided by Arbitrator one can't go in appeal.
- If the matter involves physical or mental abuse, then going for the ADR
may not be the best option as it won't give protection.
It is always recommended to opt for ADR first than going to the litigation
process as it takes time, energy and money as well.