Muhmmad Nawaz Awan
“Justice delayed is justice denied”, a phrase that echoes painfully in Pakistan’s overburdened legal system, where millions of cases await resolution. In this context, Alternative Dispute Resolution (ADR) emerges not just as an alternative but as a powerful bridge to faster, fairer, and more inclusive access to justice. To mention only a few, Mediation, Arbitration and Negotiation are some of the essential elements of ADR that assume the power to strengthen the legal system of Pakistan.
Understanding the Concept of ADR
The Alternative Dispute Resolution Act, 2017 of Pakistan defines Alternative Dispute Resolution (ADR) as “a process in which parties resort to resolving a dispute other than by adjudication by Courts and includes, but is not limited to, arbitration, mediation, conciliation, and neutral evaluation”. In plain words, ADR is a process consisting of key methods, such as arbitration, mediation, and conciliation, that can be used to resolve conflicts. Unlike Courts, where litigation is required, the process of ADR requires a neutral third party, such as an Arbitrator, who can arbitrate between the conflicting parties.
How does ADR strengthen access to justice in Pakistan’s legal system?
Expedited Resolution of Disputes: ADR can help the country to expedite the resolution of disputes much faster than traditional courts. Generally, the traditional court proceedings take a longer time to conclude a case, resulting in a huge backlog of pending cases in Pakistan. In November 2024, the Supreme Court of Pakistan was notified that more than two million cases, with 82% in district courts only, are pending in the country. Thus, it is the prime time for the Pakistani legal system to promote the process of ADR for the conclusion of pending disputes.
Cost-Effective Justice Delivery: In addition to this, the ADR process is less expensive in comparison with traditional courts’ procedures, which require court and legal fees. As a result, ADR proves to be a feasible alternative, making justice accessible to individuals and masses.
Alleviating Court Caseloads: Moreover, ADR strengthens access to justice in Pakistan’s legal system by alleviating court caseloads through diverting cases from the already overburdened court system.
Enhancing Public Trust in the Justice System: It is significant in ADR to be less adversarial and more participatory. It is primarily because this approach can improve public perception and trust in the justice system, as parties feel more in control of the outcome. According to the Asia Foundation, a nonprofit international development organization, Turkey, in January 2018, received more than 30,000 mediation requests. Consequently, the country achieved an almost 72% settlement rate in a single month.
Why is the role of ADR essential to enhance access to justice?
Promoting Inclusivity and Equity: Firstly, the marginalized groups have been provided more accessible avenues for dispute resolution and social equity through the application and promotion of ADR in the country. For instance, the ADR Act of 2017 includes provisions to increase female participation in mediation processes. As it is aptly said by Sandra Day O’Connor, an attorney of the Supreme Court of the United States, the courts of this country should not be the places where the resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.
International Best Practices: The first world countries, for example, Singapore and the United Kingdom have successfully integrated ADR into their legal systems. As a result, the western world has witnessed significant speedy justice and reduced burden on courts. It is a prime time for Pakistan to adopt the ADR process to resolve judicial challenges.
Challenges to ADR implementation in the Pakistani legal system and their solutions
Addressing the Lack of Public Awareness through Public Awareness Campaigns: In Pakistan, many individuals are unaware of ADR process and its benefits. This leads to the underutilization of these mechanisms. However, it can be mitigated through launching nationwide campaigns to educate people about ADR and its options with benefits. Along with this, the campaigns must spread the information regarding the procedures of accessing the ADR, utilizing media, community workshops, and educational institutions. In October 2023, during the mediation training in Islamabad, it was reported that the implementation of ADR has shown promising results in Islamabad. The Ministry of Law & Justice reported that ADR centers have achieved a success rate exceeding 80% in resolving referred cases.
Overcoming Legal Resistance through Professional Training: It is believed that some lawyers and advocates in Pakistan may be reluctant to adopt and promote ADR because of traditional mindsets or concerns about reduced income from short proceedings. During the Honourable Society of Gray’s Inn on “The role of judiciary in promoting investor confidence through ADR in Pakistan” in July 2024, Justice Syed Masoor Ali Shah said, “we are turning out lawyers of adversarial mindsets; we need lawyers who are of pro-settlement mindset … Judges and lawyers struggled to grasp the ADR rules and need more training and knowledge to understand this very important area”. To address this troubling perspective, implementing comprehensive training programmes for legal professionals to bring consistency in dispute resolution is mandatory. Additionally, the legal professionals should be assured of relevant laws and procedures regarding monetary benefits to lawyers.
Modernizing an Outdated Legal Framework through Legal Reforms: Although, each province has passed and enacted specific arbitration law; for example, Punjab Alternate Dispute Resolution Act 2019, Khyber Pakhtunkhwa Alternate Dispute Resolution Act 2020, Balochistan Alternate Dispute Resolution Act 2022, and the Code of Civil Procedure (Sindh Amendment) Act, 2018, the Arbitration Act of 1940, which governs arbitration in entire Pakistan, is outdated and requires significant revision to align with modern ADR practices. The arbitration acts of provinces lack federal jurisdiction and uniformity, comprehensive provincial legislation, and modern arbitration laws. The Legal Aid Society and the Sindh Judicial Academy organized an International Conference on ADR in Karachi in 2019, highlighting national and international best practices in ADR. It emphasized the role of trained mediators, known as ‘Saalis,’ in strengthening ADR mechanisms in Pakistan.
Breaking the 84-year Silence: Pakistan’s New Arbitration Law
Pakistan is in the process of overhauling its arbitration framework through the proposed Arbitration Bill, 2024. Developed by the Arbitration Law Review committee under the leadership of Justice Syed Mansoor Ali Shah, the bill seeks to align domestic arbitration laws with international standards, particularly the UNCITRAL Model Law. This includes the much-needed reforms such as empowering arbitral tribunals, reducing unnecessary court intervention, ensuring the finality of arbitral awards, and at last, enhancing the credibility and efficiency of arbitration proceedings.
Conclusion
Mediation is the bridge between conflict and resolution. The western world, such as Italy, the United Kingdom, and Singapore have been significantly adopting and promoting ADR processes. Pakistan has also witnessed a massive success in the domain of ADR. For instance, Sindh province has witnessed significant growth in ADR utilization, with cases increasing from 9,697 in 2018 to an estimated 27,528 by 2030, marking a 184% growth. Although the advancement can be seen in numbers and papers, the country is supposed to improve its ADR laws and infrastructure for better results in dispute resolution.
The writer is an associate at HSU Advocates.
