Adv: Touqeer Ahmed Seehar
Alternate Dispute Resolution or ADR for short is gaining currency throughout the world particularly in advanced jurisdictions. In some jurisdictions, such as the United States, it is reported that nearly 90 per cent of the claims or disputes are resolved through this mechanism. Here in Pakistan, the systems of Punchayat and Jirga have been successful in resolving many civil and criminal disputes.ADR provides many benefits for the parties such as time and cost saving. In commercial world, mediation, one of the popular forms of ADR provides opportunity for disputants to save their reputation and business relationship and resolve their disputes confidentially and in an amicable fashion.In reference to specific legislations in field of ADR in Pakistan, the Arbitration Act 1940 and Conciliation Court Ordinance 1961 have not been very effective. The system of conciliation envisaged by the Family Courts Act 1964 also has not delivered the desired results. The Law and Justice Commission of Pakistan, then the Pakistan Law Commission, in 1993 through its committee prepared draft legislationthe Mediation Act 1993, on the subject. The draft was submitted to the Ministry of Law and Justice for enactment and provided for a panel of mediators to be maintained at the district/sub-divisional level for the resolution of petty civil and criminal disputes. From enforcement perspective, if mediation is successful, the settlement was to be enforced through a decree.ADR has lacked structure in Pakistan and due to lack of understanding, knowledge and priorities of institutions; ADR has not been used in greater number of disputes although many opportunities existed for its development which could have reduced the adverse impact of litigation on litigants and courts.According to Law and Justice Commission of Pakistan, following is the latest available data on pendency and institution of cases in Pakistan as of 31st July, 2010. Supreme Court of Pakistan: There was a backlog of 18,829 criminal and civil cases in the Supreme Court of Pakistan on 31 July, 2010. Federal Shariat Court: There was a backlog of 1,809 cases in the Federal Shariat Court on 31 July, 2010. Punjab Province: Lahore High Court: There was a backlog of 89,041 cases in the Lahore High Court on 31 July, 2010. In district judiciary of the Punjab Province there was a backlog of 1,064,956 cases on 31 July, 2010.Sindh High Court: There was a backlog of 19, 925 cases in the High Court of Sindh on 31 July 2010.In district judiciary of the Sindh Province there was a backlog of 37,815 cases on 31 July, 2010.Peshawar High Court: There was a backlog of 9,542 cases in the Peshawar High Court on 31 July 2010.In district judiciary of the Khyber Pakhtunkhwa Province there was a backlog of 74,587 cases on 31 July, 2010.High Court of Balochistan There was a backlog of 3,971 cases in the High Court of Balochistan on 31 July, 2010.In district judiciary of the Balochistan Province there was a backlog of 6,228 cases on 31 July, 2010.Although burden of cases on judiciary due to National Judicial Policy has decreased however case numbers have been increasing over a period of years.
International Finance Corporation (IFC) and World Bank have been carrying out contract enforcement studies as part of its Doing Business Report for number of economies. It s recent Doing Business Report 2010 issued in June, 2010, for Pakistan has, among number of things, highlighted contract enforcement issues in 13 cities of Pakistan. For reference, out of 13 cities, Sukkur in Sindh Province is ranked 1 in contract enforcement where on average it takes 1,060 days to enforce a contract which involves 47 procedures and cost of contract enforcement is 20.6% of the claimed amount. On the other hand, Quetta in Balochistan province is ranked 13 where on average it takes 1,498 days to enforce a contract which involves 47 procedures and cost of contract enforcement is 32.4% of the claimed amount. These indicators reflect delays in contract enforcement and delayed dispensation of justice. The said report has also made recommendations which include setting up of commercial courts and establishing ADR/mediation centres in Pakistan in order to complement efforts of Judiciary in reducing case backlogging in courts and providing a mechanism through which disputes are resolved in minimum time and with minimum costs.
Mediation is a flexible process and in jurisdictions where it is in advanced stages is conducted by a trained and neutral Mediator. Parties to a dispute in mediation communicate through Mediator and reach an agreement which is acceptable to both. It is pertinent to note that the Mediator conducts confidential joint and separate sessions with the parties and law of evidence is generally not applicable to mediation proceedings and the process is without prejudice and legal rights of the parties are not affected if mediation is not successful and parties do not reach settlement.
SECTION 89-A, In Pakistan, at present commercial and other disputes are being resolved through ADR system. Based on the recommendation of the Law and Justice Commission of Pakistan for implementation of Alternate mode of Dispute Resolution the Government of Pakistan in 2002 amended the Civil Procedure Code 1908 ( C.P.C ) whereby section 89 gives powers to the civil courts to adopt (subject to the consent of the parties) to settle disputes by Alternate Dispute Resolution. Complimentary addition was also made in order of the Civil Procedure Code whereby the court is empowered to pass necessary orders for expediting the proceedings. The text of section 89-A along with Order X-Rule 1-A is given below: “89-A. Alternate Dispute Resolution. The Court may, where it considers necessary, having regard to the facts and circumstances of the case, with the object of securing expeditious disposal of a case, in or in relation to a suit, adopt with the consent of the parties alternate dispute resolution method including mediation and conciliation”.
Order X Rule 1-A, The Court may adopt any lawful procedure not inconsistent with the provisions of this Code to, (i) conduct preliminary proceedings and issue orders for expending processing of the case (ii) issue, with the consent of parties, commission to examine witnesses admit documents and take other steps for the purpose of trial (iii) adopt with the consent of parties, any alternative method of dispute resolution including mediation, conciliation or any such other means.
The National Judicial Policy 2009 developed by the National Judicial (Policy Making) Committee and issued from the Secretariat of Law and Justice Commission of Pakistan has empathized on use of ADR for early disposal of cases. In Section on expeditious disposal of civil cases, it has been proposed that:For early disposal of cases, the courts should adopt the following measures(d) The courts should make use of section 89-A C.P.C. to resolve disputes through Alternate Dispute Resolution (ADR) including conciliation, mediation and arbitration or any such other appropriate mode.
It remains to be seen whether cases are referred for ADR and mediation under the policy and whether courts, counsel and litigants are taking advantage of section 89-A of C.P.C.
Limitation of section 89-a and implementation issues:1. Lack of Awareness on Utility of Section 89-A, although introduced in 2002, lawyers lack awareness and utility of Section 89-A of C.P.C. The section is rarely referred to and as it is not mandatory to refer disputes pending adjudication for mediation, parties and lawyers do not request courts for matters to be referred for mediation or conciliation. It has been observed that there is lack of awareness among lawyers and litigants on benefits of Section 89-A of C.P.C.2. Reluctance to Use Section 89-A.–Mediation and conciliation can assist parties resolve their disputes in time and cost effective manner. With these methods of ADR in use, pendency of cases in courts may also be reduced which will allow courts focus on more important and intricate matters. However, section 89-A is generally opposed by the parties as resolving disputes through ADR is considered to be a weakness by litigants and ADR is also not preferred by litigants who file frivolous or vexatious claims. There are also many misconceptions about mediation as legal counsel fear that their professional fee may be reduced if disputes are resolved quickly. It is in this scenario that litigants and legal counsel do not favour case referrals for mediation through section 89-A. Hence there is reluctance to use section 89-A for referral of cases for mediation.3. Lack of Adequate Training and National Accredited Program for Mediators.At National level there are no training courses available in field of mediation. Also, an Accreditation Program in Mediation at National level is missing. Although with efforts of IFC, private sector arm of the World Bank Group, Karachi Centre for Dispute Resolution (KCDR) has been established as Pakistan s first ADR and mediation centre. KCDR has foreign accredited mediators trained through IFC consultants who provide mediation services when called to do so by KCDR. KCDR mediators assist parties to resolve disputes and these cases are referred by Sindh High Court and its subordinate courts. Parties can also refer cases to KCDR for amicable dispute resolution. KCDR has also been providing training to professionals in Conflict Resolution, ADR and mediation. In other provinces and cities accredited mediators and training programs do not exist and better use of section 89-A may be made if professionals have required training in Mediation and there is a National Accreditation Program in mediation.4. Lack of ADR Centres throughout Pakistan. -KCDR is the first institution of its kind in Pakistan and as there is no other institution having capacity to provide mediation services, Section 89-A is not resorted to although section 89-A does not mention case referrals to an ADR/mediation centre or to an Accredited Mediator.5. Litigious Culture. Pakistan unfortunately has strong litigious culture and it seems that section 89-A has largely been ignored as it defeats the purpose of litigants who wish to prolong cases for one reason or the other.1. Amendment of Section 89-A Civil Procedure Code, 1908.It is proposed that section 89-A of C.P.C requires amendment. In order for case referrals and mediations to be encouraged and a modus operandi developed for mediations in Pakistan, Section 89-A would need to include background of Mediator, qualifications, ethical issues, case referral mechanism, time limit and seat for conducting mediations and enforcement of disputes that are resolved through mediations (i.e. Settlement Agreement) and issuance of a decree confirming settlement of the dispute.
In addition to above, there is a strong need to debate the fact whether mediations need to be made mandatory. English legal system provides an insight into development of mediation mechanism and application of ADR principles through Civil Procedure Rules. A number of jurisdictions in Commonwealth have developed laws on mediation, for example, Sri Lanka and Trinidad and Tobago. Afghanistan have promulgated a Presidential Decree on Mediation which highlights its interest in complementing efforts of judiciary in reducing pendency of cases in courts which have been affected by war for a long time, 2. Establishment of Mediation Centres.There is a strong business and market need for establishing mediation centres in Pakistan to which disputes may be referred. Although Chamber of Commerce and Business Associations generally have an ADR or Arbitration Committees established to facilitate amicable settlement of disputes among its members (or other parties), independent mediation centres can be more successful in attracting disputants for the reason that parties may wish to refer their dispute to a neutral entity where all disputants receive equal treatment, 3. Establishment of Court-Annexed ADR Centres.– In India and other jurisdictions, court-annexed ADR and mediation centres have been established largely due to strategic vision of the Judiciary in enhancing access to justice, reducing case pendency and providing mechanisms that can reduce time and cost of dispute resolution. It is proposed that Ministry of Law and Justice and apex Judiciary set up Court-Annexed ADR Centres at High Courts and/or District Courts, 4. National Accreditation Program in ADR.For building capacity of professionals in mediation, a National Accreditation Program in ADR is required. With Accredited Mediators, courts and parties will be able to rely on skills of Mediators who are qualified and have experience in art of mediation and assist parties in settlement of their disputes. Either a separate institution or Pakistan Bar Council may be involved in the National Accreditation Program in ADR. A Code of Ethics for Accredited Mediators will also need to be drafted and enforced through the Accreditation giving body, 5. Mediation Curriculum in Law Colleges.A separate curriculum in field of Mediation needs to be introduced in law colleges. This exercise will introduce law students to mediation, its process and benefits for disputants. Pakistan Bar Council and Higher Education Commission of Pakistan will need to illustrate interest and activism in developing a curriculum on mediation which can then be implemented in law colleges, 6. Mediation Training through Bar Councils and Bar Associations.Generally, and in a number of jurisdictions, Bar Councils and Bar Associations are taking lead in developing and implementing different programs for continuing legal education of legal practitioners. It is proposed and desired that Pakistan Bar Council and its provincial counterparts and Supreme Court Bar Association and its related Bar Associations in High Courts and District Courts introduce mediation training for their members. These efforts will complement academic training of lawyers who would have read mediation in law faculties, 7. Mediation Clauses in Contracts. Mediation clauses can be inserted in contracts which will facilitate amicable settlement of disputes and referral of a dispute to mediation. Following is an example of a clause developed by KCDR and which is said to have been incorporated by number of business concerns and other entities:
Any and every dispute, difference or question which may arise between the parties to this agreement shall be first settled by the parties by an attempt at amicably settling the dispute through mutual negotiations.
In case the disputes, differences or questions cannot be settled amicably or satisfactorily by correspondence or by mutual discussion within thirty days (30) after receipt by one party of the other party s request for amicable settlement, it shall be referred to mediation before a registered mediator at the Karachi Center for Dispute Resolution. Mediation proceedings shall be held at Karachi and will be governed by the mediation rules of the Centre, 8. Training of Judges in Case Management and Mediation.ADR has very important role to play in justice system of Pakistan and in this regard, a specialized course in ADR needs to be developed for Judges working in District Judiciary. Federal and Provincial Judicial academies in Pakistan are already working in this area and do hold lectures on ADR. However, further training is required which will facilitate case referrals for mediation.
ADR has bright future in Pakistan and certain steps taken in right direction can create conducive environment for development of mediation for businesses and other beneficiaries. Mediation can change culture of resolving disputes and it may also further the expeditious resolution and disposal of cases. With strong mediation instruments in Pakistan, foreign and domestic investment in Pakistan can be increased as investors are discouraged by lengthy and costly litigation processes.
Judiciary can develop appropriate rules for courts which can enhance applicability of section 89-A of C.P.C. and strengthen its use until required amendments have been made. The legal profession has to accept business and market needs and equip themselves with knowledge and skills of mediation and develop professional capacity in field of ADR as this is a major requirement for modern day clients. Lawyers will need to support mediation in larger interest of their clients as prolonged litigation does not favour litigants and a quick resolution through mediation process can provide clients with a win-win solution.
In April, 2010, Law and Justice Commission of Pakistan and Supreme Court of Pakistan organized National Judicial Conference in Islamabad which attracted Judges, Lawyers, Academics, Government officials and Civil Society organizations. ADR was given importance in Agenda of the Conference and speakers at an ADR session discussed ADR, its benefits, problems and future development including recommendations. During same month, IFC in collaboration with Federal Judicial Academy, Islamabad and Embassy of the Kingdom of the Netherlands organized a 2- day National Conference on ADR in Lahore which provided opportunity for members of Judiciary, Legal profession, Government, Academia and others to highlight challenges and developments in ADR in Pakistan and future interventions required. Conferences are part of awareness raising activities that will no doubt lead to educated communities in field of mediation and provide guided directions to stakeholders in institutional development and service delivery of ADR mechanisms.
