Alternative Dispute Resolution

Alternative Dispute Resolution, usually referred to as ADR, is a process in which parties in a dispute resolve their problems with mutual consent without going through procedures involving litigation. In Pakistan, the ADR Bill was passed in 2017 and many ADR centers were set up across the country, in the same year. The purpose of this bill was to ensure delivery of speedy, less formal and less expensive method of accessing justice.

If we look back at the history of Pakistan, ADR is not a new concept. It is as old as Pakistan itself. It is the modern form of “Punchayat” and “Jigra” system, used to resolve family disputes. In Pakistan, two forms of ADR have been practiced in the past century, Traditional ADR and Public Body ADR. Traditional ADR, which includes the Punchayat system in Punjab and the Jirga system in Khyber Pakhtoonkhwa and Balochitsan was competent to deal with minor offences. Later, public bodies became involved in resolving such disputes through traditional ADR methods. Following this, Conciliation courts were established under the Conciliation Court Ordinance 1961 and such courts took over the traditional functions dispensed by ADR. Separate Arbitration Councils were set up to deal with family issues and issues involving disputes in the workplace were dealt with Union councils, working pursuant to the Muslim Family Law Ordinance 1961.

Speedy Justice

The slow speed of litigation is a huge problem of the justice system in Pakistan. There is a colossal backlog of cases in superior and sub-ordinate courts. Many Cases linger on for generations which results in them adding to the burden of the incoming high volume of cases. Some cases go on for generations and have yet to result in some conclusive ruling. Mr Waheed’s Case, Raja Arif (late) case and Benazir Murder case are good examples of this.  Over 1.87 Million Cases are still pending in the courts of Pakistan. According to the Law and Justice Commission of Pakistan, there are 38,359 cases pending in the Supreme Court and 293,947, cases pending in the five High Courts.

William Ewart Gladstone , the Prime Minister of United Kingdom in the late 19th century once said: “Justice Delayed is Justice Denied”. Order and justice are the two sides of the same coin. Both have equal importance for the peace and welfare of a society. In order to reduce the pendency of cases and to provide speedy justice, there is no better option but to adopt ADR which is well equipped to dispense with majority of civil cases by means of arbitration, conciliation and mediation.

Cases involving murder and the division or exchange of property make up a high quantity of such cases in Pakistan. Given that not all criminal cases can be subject to ADR, civil cases involving property can very well be settled through ADR. In fact it is such cases that the system of ADR is well equipped to deal with. Parties are much more involved in the process and are not frustrated by the procedural formalities and the legal vernacular of courts. They are therefore more likely to be amenable to reach a mutual resolution faster. Further helping matters is the less time and low cost, compared to what the litigants would usually pay in court for the same dispute.

More than 10000 cases have been successfully resolved by mediators since the enactment of the ADR Act. These include over 30 criminal cases, 35 civil cases and 56 family cases where both parties have come to a mutual resolution.  Even the Chief Jusitce of Pakistan encourages the use of ADR as he stated: “If the legislature will not fulfill its responsibility then we have to move forward and introduce new methods” .

Cost involved

Litigation in court involves high costs. To deal with this, some amendments were made to the CPC and the CrPC bt so far, they have all been in vain. These costs discourage many from involing the courts jurisdiction to seek redress of wrongs done to them. Costs involve legal representation fees, court fees and travelling expenses (to the court where one has filed the case, which many have to do from their home towns located far away). A lawyer may charge 30,000 per hearing and so on. Even in order to seek justice in minor civil disputes costs thousands of rupees is involved which many, especially the financially weak cannot afford. In a country with many living below the poverty line, this is a huge problem.  Sabahat Bibi, a litigant who was helped by NGOs as well, nonetheless had to spend 150,000 rupees of her own money on the litigation proceedings. These financial difficulties push many to believe the court is an option of last resort.

To this, ADR provides an effective remedy. Since ADR centers have been instituted in cities where courts, especially the high courts are not available, travel costs are reduced. Little to no legal representation is required as the process is self directed. This further reduces costs of legal representation. Since the ADR method does not itself cost anything, no additional costs of accessing it are added to the resolution of the dispute.

Problems of Legal representation

No legal representation is mandated in ADR. This removes the mischief of some opportunistic lawyers, who prolong hearings to increase their revenue from clients. This speeds up the resolution of the dispute and conveys actual relief to the parties involved, preventing new cases from joining those which have been reduced to mere statistics, unlikely of achieving actual resolution. Moreover, in the absence of a judge or a lawyer, parties are more likely to interact freely, be less hostile to each other and be more open to suggestions of the mediators.

Conclusion

Other countries, like United States of America, India, Bangladesh and Russia have adopted this mechanism since time immemorial. India is not only our neighbor but also, our cultural and constitutional twin. India has been employing ADR way before Pakistan and has seen an increase in individuals engaging ADR, reducing the time and money they spend in litigation. Given that Pakistan has recently incorporated ADR into its justice system, it is likely to replicate the results in India, especially in context of the speed of litigation,the expenses involved and the willingness of Pakistanis to engage this practice.