Alternative Dispute Resolutions (ADR) is a term that is commonly known amongst the legal fraternity that refers to various methods that allow disputes to be settled and resolved out of courts. The roots of ADR can be traced back to the Ancient Greeks, the Mari Kingdom (modern-day Syria), and the Ancient Egyptian Amarna System that dates back to around 1400 B.C. The mechanisms of mediation and arbitration were used to solve disputes with other kingdoms and improve international relations, thus used an act of diplomacy.
The primary forms of ADR include Arbitration and Mediation. The former is a procedure by which the parties appoint a third independent, neutral party known as the arbitrator. After reviewing the arguments of both sides, the arbitrator will pass a final decision, i.e., an award that can be enforced through the courts. On the other hand, mediation is the process by which the parties reach a mutual decision themselves through the help of an independent third party. These procedures offer a fast and cost-effective solutions compared to lengthy litigation in courts and protect the identities of commercial parties becoming public in the media.
One of the most pressing issues that developing countries face is a burden on their limited judicial resources due to the rise in the number of court cases. The National Judicial Policymaking Committee (NJPC) of Pakistan issued data in August 2020 that showed that more than two million cases are pending in the Supreme Court, Federal Shariat Court, High Courts, and District Courts. A continuous rise in pendency of cases is due to various reasons; however, the ultimate consequence is the delay in providing quick justice. Therefore, the question arises whether new innovative methods of settling disputes outside of the courts can solve or at least reduce the problem.
Legislations have been drafted and implemented in Pakistan. Examples include The Punjab Alternative Dispute Resolution Act 2019 that provides that the court will refer the cases to ADR if it falls within the two schedules mentioned in the Act. However, in comparison, Sindh does not have a sole ADR act, but an amendment has recently been included in the Code of Civil Procedure (Sindh Amendment Bill 2018) that introduced the definition of ADR and provided that notwithstanding any other laws, the court may use ADR methods to resolve cases of civil or commercial matters.
The Lahore High Court has also been advocating for the use of ADR methods by imposing initiatives such as “court-annexed mediation,” by which they will refer cases to mediation at the court’s complex. Disputes Centers in Pakistan, such as the National Center for Dispute Resolution, have played a pivotal role in introducing ADR and encouraging parties to engage in these methods.
Finnah Mamoona, in her research paper “Effectiveness of ADR Methods in Combatting Delays in the Civil Justice System,” presents a statistical analysis that highlights the success of ADR methods. She provides that in 2017 there was 250 cases weekly that weresuccessfully decided which increased to 397 on the basis of mediation in Punjab. The success rate makes one wonderwhether a unified ADR policy should be drafted throughout the whole country to combat the peril of delayed justice.
One noticeable element in the two pieces of legislation concerning ADR is that it gives the powers to the courts to decide or send the case to be resolved by employing ADR. It does not make it mandatory for the parties to conduct ADR before approaching the doorsteps of the courts with evidence of a failed attempt to solve the dispute. This approach is enforced in the United Kingdom as the Civil Procedure Code mentions,”Litigation should be a last resort”. The parties are expected to negotiate or consider some other form of ADR to settle the disputes before commencing proceedings against each other. If the parties fail to do so or could not do so because of one party’s unwillingness, cost sanctions are imposed. Such reform can also be implemented in Pakistan, where the law imposes an obligation upon the parties to use more cost-efficient and effective methods that give them the freedom to reach a more flexible decision on their terms compared to the courts enforcing one for them.
Hence, the problem of pending cases can be resolved by the use of ADR. Further, court reference of dispute to ADR will reduce the number of cases coming to courts, as people would notice that the attitude of the courts in not entering frivolous lawsuits. Thus, hyped parties who want to litigate every matter would think twice before initiating proceeding. Therefore, quicker access to resolving disputes has multiple benefits, including but not limited to facilitating commercial transactions, saving courts precious resources, and giving control to the parties.
However, the approach of the public needs a shift, as the orthodox view of many people in our country is that justice can only be granted if we litigate the matter. Hence awareness campaigns need to be conducted by the state to educate citizens and promote the existence of ADR in the country.
Moreover, the state should provide training and adequate infrastructure to develop dispute resolution centers throughout the country. Lastly, most importantly, institutions that teach law should include modules on ADR and give information on how mediation and arbitration certifications can be obtained. The gain from this is that the next generation of advocates would understand and advise their clients that disputes could even be resolved when parties sit together, listen and talk.
