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Legal experts, judges believe that Alternative Dispute Resolution mechanism is the only way to shed backlog of cases and achieve speedy justice
ISLAMABAD: The term Alternative Dispute Resolution (ADR) may sound and feel imposing to a layman and feel like a lost opportunity for litigation to a lawyer. However, for all intents and purposes, it has been in deeply entrenched in the Sub-continent in shape of Panchayat and Jirga.
Initially, The Arbitration Act 1940 formalised the arbitration process where parties submitted to resolve their disputes outside the ambit of formal litigation to resolve differences. However, a single incident in Punjab awakened the state from its slumber when due to backlog and rampant delays in conclusion of cases and a total ineffectiveness of lower courts, hundreds of lawyers went on a strike in 36 districts of Punjab in September 2016. The episode streamlined the passage of ADR Bill in Parliament that aimed to provide a time saving and cost-effective alternative to formal legislation that ultimately aimed at shedding backlog of millions of court cases, stump frivolous litigation and help in quick disposal of cases.
It is pertinent to mention here that of total 39 ADR centres working in 36 districts of the Punjab, as of January this year, a total of 7,439 cases had been successfully mediated out of 8,372 sent to them – 87 percent success rate. Although most cases pertain to minor offences and contract issues, yet the success ratio holds its promise.
In Islamabad Declaration announced after the conclusion of 8th Judicial Conference, the group that deliberated on the methodologies and deterring factors in Alternative Dispute Resolution mechanism admitted that ADR is one of the most effective and efficacious mode of dispute resolution as compared to regular litigation.
In countries such as the USA, UK, Canada and India, ADR has effectively been implemented through different models, tailor-made for the needs of their societies.
‘Directly transplanting a foreign model may not be advisable. Indigenisation is the key to cater for Pakistani conditions,’ the declaration reads.
The panel discussion agreed that the time honoured international models can be easily adopted and adapted but with emphasis on mediation rather than arbitration which may then be translated into court decrees through appropriate proceedings and legislation if necessary.
In this regard special emphasis needs to be placed on international cooperation and human resource development in Pakistan.
‘In pending litigation, effective selection of disputes amenable to mediation and ADR is necessary. Judges need to be specially trained for this purpose because court annexed mediation has been found to be the most effective way to resolve disputes,’ the declaration reads, adding that the vast expanse of people, for socio-economic reasons, have no access to courts at all for a redressal of their grievances and protection of their rights.
We tend to forget these faceless and voiceless, teeming millions. Access to justice needs to be facilitated through an alternative to our existing court system at the grass root level under the cover of law.
While talking to Pakistan Today, Supreme Court Advocate Azam Nazir Tarar said that ADR is not a choice, it is the only option available.
‘With a backlog of millions of cases and a scarcity of judges in subordinate judiciary, it is need of the hour to incorporate ADR mechanism to free up time of courts for more serious matters. The litigants too will benefit as they will have recourse and resolution in shorter time with less expenses,’ said Tarar when asked about the future and promise of ADR in Pakistan Judicial System.
Advocate Supreme Court and Senior Partner ABS&Co Majid Bashir said that Civil Procedure Code under Section 89-A already gives both parties the opportunity to resolve their differences through mediation.
‘However, it is about time that the power to refer a matter to mediation or arbitration be transferred to judges as only then can it be of some use,’ he said.
Bashir was of the opinion that in order to get the most out of arbitration, mediation and other alternative dispute mechanisms, the legislature needs to empower the judges.
