A new mediation act ? The way forward for Pakistan
ALTERNATIVE Dispute Resolution (ADR) has been through its own vicissitudes in Pakistan’s legal system.
Arbitration is known to be the most common method of alternative dispute resolution as compared to other ADR mechanisms like mediation or conciliation.
In a county like Pakistan where a backlog of cases runs into millions, the use of ADR mechanisms should have been made mandatory a long time ago.
Both the current government and judiciary have been big advocates for the introduction of ADR friendly laws.
The government of Pakistan in 2013 developed the ‘Pakistan Vision 2025’, pledging that the laws and regulations would be simplified, updated, modernized, made more transparent, and their discretionary application discouraged regarding the ADR mechanisms.
The Law and Justice Commission of Pakistan held the 8th Judicial conference in the Supreme Court of Pakistan in 2018.
Alternative dispute resolution methodologies, deterring factors, strategy for delay reduction and expeditious disposal of backlog of cases were discussed in the form of focus groups and recommendations were issued to the government of Pakistan by the Honourable Supreme Court of Pakistan known as the ‘Islamabad Declaration 2018’.
The Pakistan vision 2025 and the recommendations at the 8th Judicial conference by the honourable Supreme Court of Pakistan paved the path for the enactment of ADR Acts in various provinces of Pakistan.
While the provision of ADR mechanisms is going through its own process of evolution, there is still a lot to be done before it is accepted by the legal fraternity as well as the public at large.
The ADR Acts has a mandatory requirement to refer certain type of cases to ADR at the early stage in the proceedings, a clear picture of mandatory ADR is still missing.
The accredited ADR centres in Pakistan are yet to be established. The Act makes reference to the establishment of accredited ADR centres however the accreditation procedures have thus far not been formulated.
Pakistan is yet to be a signatory of the ‘Singapore Convention’. The Panchayat (Village Council) system in Punjab and the Jirga System in Khyber Pakhtunkhwa and Baluchistan have been practised as an alternate justice system for centuries.
The word Panchayat means “assembly” (ayat) of five (panch). Panchayats comprised respected and wise elders accepted by the local people conventionally.
The modern Pakistani legal system has not been able to utilise the undoubted strength of mediation despite having traditional recognition of negotiation and resolution of disputes through Panchayat system.
Mediation has been an effective tool in resolving disputes in the business community throughout the world since at least the time of ancient Greece and ancient Rome. While some countries have made mediation mandatory, others are on the way to make it mandatory in some form or the other.
In 2002, the resolution of disputes through mediation and conciliation became part of the statutory law for the first time in Pakistan through the enactment of Ordinance XXXIV of 2002 by inserting Section 89-A into CPC. The National Judiciary (Policy Making) Committee formulated the National Judiciary Policy in 2009 stated that “The Small Claims and Minor Offences Courts Ordinance 2002 should be applied in earnest.
The Alternative Dispute Resolution Act 2017 (applicable in federal territory) requires certain matters to be referred to mediation of the parties agree.
Punjab implemented this law by inserting Order IX-B in the CPC as well as by enacting the Punjab Alternative Dispute Resolution Act 2019.
The Lahore High Court, as a part of judicial reforms, established a mediation centre in 2017 to mainstream “court-annexed mediation,” a procedure whereby judges refer cases to mediators assigned by the Lahore High Court, which started from Lahore and have now been established in all 36 districts of Punjab, manned by judges who serve as mediators.
Since 2017, 30688 cases had been referred to mediation, out of which 14239 references had been successfully mediated up until January 2019. Mediation has achieved substantial results through the mediation centres established by the Lahore High Court.
Recent amendments to the CPC by the provinces and the federal territory have provided for the mandatory referral of certain disputes to mediation as a preliminary measure. One of the obstacles faced by mediation in its fight for an independent existence has been the resistance from lawyers. —To be continued.
—The writer is a Barrister, Arbitrator, Mediator and Lecturer.