Arbitration and its relation to family laws

INTRODUCTION:

“Arbitration is a divine function”[1] , arbitrators are “God’s people”[2]. Apostle Paul is in support of arbitrators being appointed in the Church to decide on disputes among the church members.[3] “ Arbitration is well seen  in the Old and New Testaments of the Bible and thus  the formal non-judicial arbitration first began  with the History of the Bible . In the New Testament Jesus Christ speaks of Arbitration , Judiciary as well and it can be said with some certainty that arbitration, as a way of resolving disputes predates formal courts”.[4]  It developed among nations with diverse enactments and with the principles on which the Popes claimed the right to arbitrate based on the papal theory of the relationship between the Holy See and the temporal powers[5]. Arbitration is one kind of alternative dispute resolution (ADR). Jerry Barrett says in his article, Arbitration: An Ancient Process and Modern Practice : “Probably few current ADR Practitioners know the long history of peaceful conflict resolution. Many may be surprised to learn that the three basic forms of ADR-negotiation, meditaion and arbitration-first appeared centuries before the birth of Christ. The numerous decendentants of these basic processes continued to grow and expand and finally came togather under the ADR title in the late twentieth century. The term “negotiation” usually refers to the give and take conversation between disputing parties without the assistance of a third party. Mediation is a negotiation that is assisted by a neutral third party facilitator with no decision-power. In mediation, the final decision on outcomes remains in the disputants’ hands. “Arbitration” uses a third party neutral who decides the outcome of a dispute between two or more parties based on evidence provided by the parties. Often the decision is binding on all parties.”[6]      

ADR is a way for people to try to work out legal issues without going to court. In arbitration, you or the other party to agreement or both of you hire a third person to resolve your conflict. This person is called  arbitrator or “arbitral tribunal”[7]. Arbitration is different from Mediation or Private Agreement. In mediation, a trained mediator helps people come to an agreement. If you are in mediation, you have choices. You can end the talks at any time or decide not to accept what the other party is offering or the mediator is suggesting. In arbitration, you have no choice. You must accept the arbitrator’s decision, as long as it follows the law. The private agreements made for decision about a  dispute by elders or experts or religious heads not being appointed as arbitrators, their decision is not legally binding and cannot be enforced. Arbitration is like a court case, but it is less formal. Most people have a lawyer. At the hearing, both you and the other party can give evidence and say what you think is fair. After each of you has talked, the arbitrator will make a decision. His binding decision is called  arbitral award.  Arbitration and Conciliation Act, 1996 is the statutory law for arbitration in India.

Normally arbitration is used for the right in personam (which is an interest protected solely against specific individuals). Generally, all disputes relating to rights in personam are considered to be arbitrable and all disputes relating to rights in rem are required to be adjudicated by courts and public tribunals. They are therefore considered unsuitable for private arbitration. There are, however, exceptions to this rule. Disputes relating to subordinate rights in personam arising from rights in rem have always been considered to be arbitrable. Such is the Family Dispute, being arbitrable within the latitude allowed in the law. Howbeit an arbitrator cannot grant a divorce or an annulment but can decide on certain other things such as  how to divide property. They can only decide on the issues you ask them to resolve.

A cautious explanation of arbitration law might begin with acknowledgment of the tension between two sets of prospects. First, courts should offer effect to arbitration commitments concluded through informed consent. Second, judges must monitor arbitration’s basic procedural integrity, which includes impartial arbitrators who hear before deciding and respect both contractual limits of their authority and relevant public policy.

On 11 & 12 of December 2015 Indian Council of Arbitration (ICA) conducted an International Conference on “Arbitration in the  Era of Globalization”  at New Delhi, where the Hon’ble Chief Justice of India  said that the integrity of Judges could be easily accepted by the Courts when  Judges involve in arbitration whereas other arbitrators’ award may be questioned by the Courts for want of integrity. But the ICA President and the Advocate General of India Mr.Mukul Rohatgi  said that the arbitration is not the monopoly of the judges and integrity is not their birth-right only. These statements reflect the tension between two sets of prospects, being set forth below.

If integrity were to be looked upon as an exclusive monopoly of  Judges there would be no effect to arbitration commitments via informed consent, and the liberty offered to a party through the Act to select his own judge, arbitrator being a judge of parties’ choice.”[8]  shall be set at naught, notwithstanding the impartiality of the arbitrators, respecting both contractual limits of their authority and relevant public policy.

The role of arbitration law thus aims to enhance the rule of law in its broadest sense, seeking balance between respect for parties’ agreement and the correlative judicial duty to monitor fairness in the process. Today there is a strong tendency in public policy towards alternative dispute resolution processes such as arbitration.

AUTHORITY & JURISDICTION OF ARBITRATORS

* “All matters which may form the subject-matter of civil litigation affecting rights, or in other words all disputes between parties relating to private rights or obligations which civil Courts may take cognizance within the meaning of Section 9 of the Civil procedure Code of 1908, may be referred to arbitration”

* “Pure Question of Law may be referred to the decision of an arbitrator”

* “Unless forbidden by the statute or public policy, all matters of controversy or litigation whether of law or of equity jurisdiction can be submitted to arbitration.”

*  “Where the parties specifically agree to refer a point of law to the arbitrator such point should be decided by the arbitrator and not by the Court. But in the absence of such agreement one party cannot insist on the other to refer a pure point of law to the arbitrator and this should be no bar to a party to institute an action in a civil Court for a decision on the point.”[12]

JURISDICTION & DEMAND FOR FAMILY  ARBITRATION

*“ Considerable degree of latitude is allowed to arbitrators in settling family disputes.”

* “They may award to a party the expenses of his marriage.”

*“A dispute of civil nature between a man and his wife or between family members may be referable.”

* “Arbitrators are competent to give awards in all cases of breaches of contracts including breaches of promise of marriage.”[16]

*  In Isribai v. V.Pevrbia

* Parties may refer to arbitration whether a judgment has been properly obtained; whether it has been satisfied, or whether it is void or erroneous.

In Umar v. Dadli,[20] the Court said,“ The main point argued before us in this application is that the learned sub-judge had no jurisdiction to refer the matters in dispute in the suit in question to arbitration: that such a reference amount to a contract which was opposed to public policy and that is in against public policy and that suits which relate to the personal relations between the parties should be referred to arbitration. the learned pleader who appears for the applicant has been unable to refer us to any authority directly on the point. He has referred, however to certain passages in the law of arbitration by Gopal Das to the effect that the matters covered by the divorce act or the insolvency act cannot be referred to arbitration. we do not consider that there is any analogy whatever between proceeding covered by the aforesaid acts and suits cognizable by a civil court to which the provisions of the civil procedure code apply. Paragraph 1 of the second schedule of the civil procedure code ( section 26) states in perfectly wide terms that any suit may be referred to arbitration. we do not, think that, therefore, there is any substance in the point raised by the learned pleader.”[21]

* “The Question whether a particular claim is within the arbitration clause is a question which under a suitable arbitration clause is for the arbitrator to decide.”

Today many couples in relationship disputes require help in resolving their dispute but hesitantly they do not like to go to court. A decision is to be arrived at. Arbitration has significant merits.

PROBLEMS EXPERIENCED WITH THE ADVERSARIAL SYSTEM OF LITIGATION

“The Supreme Court in the Gaurav Nagpal vs. Sumedha Nagpal[23] case emphasised that efforts should be made to bring about conciliation to bridge communication gaps to prevent people from rushing to courts. Notwithstanding this recommendation by the Supreme Court of India, for conciliation, which is another form of ADR, we are constrained to litigate to resolve family disputes. Let us analyse the best mode of settlement   in the light of words of the great people of the world, starting with the most influential person of the world:

Jesus Christ said, “Therefore, if you are offering your gift at the altar and there remember that your brother has something against you, leave your gift there in front of the altar. First go and be reconciled to your brother; then come and offer your gift. Settle matters quickly with your adversary who is taking you to court. Do it while you are still with him on the way ,otherwise you will be handed over to the Officers and then put in jail till you pay off the money that you owe to him (in full)”[24]

Mahatma Gandhi said, " I realised that the true function of a lawyer was to unite parties... A large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby - not even money, certainly not my soul."

Abraham Lincoln said, "Discourage litigation. Persuade your neighbours to compromise whenever you can . . . the nominal winner is often a real loser in fees, in expenses, and waste of time." 

Chief Justice Warren Burger of US Supreme Court stated: “Our litigation system is too costly, too painful, too destructive, too inefficient for a truly civilised people.”  

FAMILY LAWS & MATRIMONIAL MEDIATION

In India, Section 5 of the Family Court Act 1984  provides  provision for the Government to require the association of Social Welfare Organization to hold the family Court to arrive at a settlement. Section 6 of the Act provides for appointment of permanent counsellors to effect settlement in the family matters. Further Section 9 of the Family Courts Act, Section 89 and Order XXXII-A of the Code of Civil Procedure, 1908  make  it obligatory on the part of  the court to give a fair chance to a conciliated or negotiated settlement before adjudication is embarked upon. Section 23 of the Hindu Marriage Act, 1955  concentrates  on  attempting a reconciliation by the judge. The Supreme Court’s landmark verdict in Jagraj Singh Vs. Bir Pal Kaur[25] against ex-parte proceedings without attempts to reconciliation on account of the absence of a party makes it clear that the Court annexed ADR mechanism is mandatory u/r Section 23(2) of the Hindu marriage Act and as nowhere is said that private ADR mechanism would not complement any of the Hon’ble Court’s procedure, we can therefore extent cooperation for reconciliation by all means.

Justice Manju Goel[26]   says about the singularities of Family mediation as, “Mediation in the context of matrimonial dispute is different in its form and content from that in the context of commercial and property disputes. The matrimonial disputes are distinct from other types of disputes on account of presence of certain factors which are not obtained in other disputes. These factors are motivation, sentiments, social compulsions, personal liabilities and responsibilities of the parties, the views of the two parties regarding life in general and to the institution of marriage in particular, the security for the future life, so on and so forth. Talking in terms of the mediation for matrimonial disputes one must remember that the factors that weigh the decisions of the parties are not controlled simply by rational factors. Very often irrational and emotional factors also have dominant roles in creation of the dispute as well as in their settlement.” He adds saying, “The professional mediator not attached to court does not enjoy the power of commanding a party to his presence. Here he must secure the cooperation of the parties by assuring the party that the parties have the freedom to join the mediation but also to terminate it at any time if they feel that the same is not likely to produce any result”. This could be done based on Section 62 of the Arbitration and Conciliation Act, 1996, which came into force before the Family Court Act in 1984.

FAMILY LAW ARBITRATION, ITS  ADVANTAGES  & CHRISTIAN APPROACH:

I would say that the family law arbitration only would  save greater damages in the families when there poses a damage in the relationships and social hardships in divorces. The arbitral awards could direct them to approach the concerned Courts for divorce within a stipulated period of time lest the posing problem should become greater.  This would also help the concerned Courts to proceed further in a faster pace, using the learned arbitrator’s award. Only thing that  would matter here is the qualification, training and experience of the arbitrator and nothing else though he is a private arbitrator.

Justice Manju Goel, Judge, High Court of Delhi in his article

Most of the couples in relationship disputes need help in resolving their dispute but understandably they don't want to go to court. Sometimes it proves impossible to reach an agreement even with the benefit of a mediator or conciliator, or settlement-orientated solicitors amidst the furies of the couple . A decision is needed now quickly. Arbitration has considerable merits, including flexibility of resolving disputes, choice and continuity of the arbitrator, speed, confidentiality and other benefits.

The advantages and benefits of family arbitration include the following: Identity of the arbitrator.

Continuity of arbitrator, Geographic limitless arbitration, Usage of Information Technologies in arbitration, flexibility of appearance, Disputants’ timetable for arbitration, Privacy and Confidentiality maintenance, the Arbitrator can deal with discrete disputed issues or deal with all of the case, the couple control the style of the proceedings, having regard to the nature of the dispute and to their precise needs.  The arbitrator is not bound by all rules of evidence but may inform himself or herself on any matter in any way that he or she considers appropriate. The arbitrator may require a person to attend to give evidence and/or produce documents, in accordance with court rules and based on powers in Arbitration Act. An arbitration need not be adversarial which the court based system still is at heart; the arbitrator is more of an inquisitor with power to order disclosure of what is particularly needed in a specific case. The parties can decide if costs follow the event (e.g. who wins) and if so what is the event, alternatively costs can be shared equally or no order as to costs.

Another advantage of arbitration in family laws is the Early Neutral Evaluation (ENE) being conducted  by the arbitrator is used for arbitrator’s decision making.

Family Law arbitration especially for Christians would help the couple to dispute  to get rid of their feel of guilt of approaching the Courts for divorce in the absence of adultery. The Christian Priest as a Christian Arbitrator can administer oath in his capacity as a Priest, being entrusted with powers for Christian marriage ‘knots and ties’ on the ground of ceasing to be a Christian by  conversion to another religionThe Biblical Exception Clause Rule”

The Indian Christian Marriage Act, 1872 in Part-VII under Penalties in Section 66 clearly implies that the Church of England or of Scotland or of Rome is a court

Biblical Rule of  Separation by Consent of parties

“Do not deprive one another except with consent for a time, that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self-control. But I say this as a concession, not as a commandment”. This rule is accepted by the Court of law if consent is put in writing as in Venkata Subba Rao v. Suryakumari,

Biblical Rule of Marriage and Divorce

[10]“For the married people  I have a command which is not my own but the Lord’s: a wife must not leave her husband; [11] but if she does, she must remain single or else be reconciled to her husband; and a husband must not divorce his wife.” This is an implied religious rule of marriage in Christianity. On acceptance of this rule, which requires no written agreement signed

Biblical Rule of Religious Tolerance in Love Marriages

Never being compromised with the world and its concepts Apostle Paul, aiming at the peace of the familyas Apostle Paul has advised young couples of different faiths a long time ago!)

CHRISTIAN CONCEPT OF ARBITRATION:

Apostle Paul is aware of litigations in the Courts and he asks the Churches to appoint arbitrators to settle disputes among its members 25: "If someone brings a lawsuit against you and takes you to court, settle the dispute while there is time, before you get to court. Once you are there, you will be turned over to the judge, who will hand you over to the police, and you will be put in jail. 26: “There you will stay, I tell you, until you pay the last penny of your fine.] In this context Jesus continues saying in Matthew 18:18 “I tell you the truth, whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven.”, which would reflect the present Chief Justice of India’s remark on arbitration as “arbitration is a divine job”.

Associate U.S. Supreme Court Justice Antonin Scalia said in 1987: I think this passage has something to say about the proper Christian attitude toward civil litigation. Paul says that the mediation of a mutual friend, such as the parish priest, should be sought before parties run off to the law courts.... I think we are too ready today to seek vindication or vengeance through adversary proceedings rather than peace through mediation.... Good Christians, just as they are slow to anger, should be slow to sue.

In the 1982 Report on the State of the Judiciary, Chief Justice Warren Burger “One reason our courts have become overburdened is that Americans are increasingly turning to the courts for relief from a range of personal distresses and anxieties.  Remedies for personal wrongs that once were considered the responsibility of institutions other than the courts are now boldly asserted as legal "entitlements."  The courts have been expected to fill the void created by the decline of church, family and neighborhood unity”

CURRENT TRENDS IN OTHER COUNTRIES

England :Following  the U.K’s  Arbitration Act 1996. a new scheme launched in February 2012 has got for the first time in England  a body of rules for family arbitration. Family arbitration can be suitable for international disputes also.

South Carolina:“Arbitration agreements in South Carolina are governed by the Uniform Arbitration Act.  Arbitration has been approved as a valid process for the determination of family law disputes.  The South Carolina Court of Appeals has ruled that agreements to arbitrate and the resulting arbitration awards be treated the same in family court as in any other courtArbitration is also discreet. 

Canada:[49]

With respect to the use of religious law to settle family disputes, as Boyd states on page 12 of her Review: “the language of the Act is consistent with a choice of a different type of law, such as a religious law or even a set of rules made up by a private organization or by the parties themselves to govern their relationship.” In other words, individuals have been free to use private arbitration based on religious law since the first statute was written in Ontario.

CONCLUSION

The Mediation Cell of the Punjab and Haryana High Court,  attempting  to patch up matrimonial disputes, is actually a positive development. Following the Supreme Court’s judgment  in the Jagraj Singh vs. Birpal Kaur

Judge, Supreme Court of India saying in his article,  Courts and  Alternatives ,  “The slogan of the day should be ‘mediate' and do not ‘litigate' ” would remind of our being more prone to ADR mechanism now-days in India.

Certainly, not all cases are fit to arbitration  notwithstanding  the consent of both parties to go into arbitration. Obviously, like any other new ADR options, it will travel through time for family arbitration to associate with the Indian legal culture and for ADR practitioners to see it as a viable option for their clients though not preferred. Howbeit I hope  that within 5-6 years period of the advent of binding family arbitration,  lawyers will astonish how we toiled along without it, considerably given the escalating obscurity of disputes and delay, expenses and equality of the traditional court processes..

By: Adv. Dr. R. Stephen Louie

Advocate & Cpeace International Arbitrator