Introduction of ADR (Alternate Dispute Resolution)The importance of Alternative Dispute Resolution (ADR) as a Secondary Dispute Settlement is increasing day by day.
In any modern civilization, we can see clearly that the Courts and Judges formulate the root foundation of the judicial system. This foundation remains as long as the level of integrity of judges and justice of the Courts and Judges is maintained and enjoyed by the people. As stated by Lord Denning that, “Justice must not only be done but be seen to be done”.The key idea of Alternative Dispute Resolution will never substitute or overcome the Courts as the new place or forum for justice. The idea of developing and introducing ADR is not new.
It has been mooted, rooted, debated, practiced and marketed for more than a few decades. We can see a vast increase in ADR cases and yet, this has not reduced significantly the cases filed in the courts.When disputing parties opt for ADR (Alternate Dispute Resolution), it does not mean that they have lost faith in the judicial system. It is here that the judges and the courts ought to realize that ADR is a useful form of clearing the backlog of cases. This will mean that there will be more room and time for the courts to decide on criminal matters which are of public interest. The courts can spend time to weigh, ponder and consider important legal questions and further develop the law.
Definitions of ADR (Alternate Dispute Resolution)Following are some definitions of ADR (Alternate Dispute Resolution) by different angels and ways:-ADR (Alternate Dispute Resolution) is a bundle of processes utilized for the purpose of solving a dispute and conflict in an informal way with different and unique methods.The term “Alternate Dispute Resolution” or ADR is generally used to define a big scale mechanism to counter the conflict having a vast and wide scope and then resolve it alternatively to full scale process of court.Alternate Dispute Resolution, includes a conflict resolution processes with special techniques and methods that act as a path for disputing parties to come on a way of agreement, which is alternate of litigation. It is a summative term for the ways that parties can settle disputes, with or without the help of a third party.The brief, satisfactory and crux definition of ADR (Alternate Dispute Resolution) is mentioned in ADR Conference conducted by Supreme Court of Pakistan under the presidency of EX. Chief Justice of Pakistan IFTIKHAR MUHAMMAD CHAUDHRY as:-“It is a generic term which refers to a wide array of practices.
It is an out of court settlement of disputes through various modes such as negotiation, mediation, conciliation, arbitration and facilitation etc.” Elements of ADR (Alternate Dispute Resolution)Following are the Primary & Secondary elements of Alternate Dispute Resolution through which it exercised and run its machinery.Primary Elements of ADRNegotiationMediationConciliationArbitrationSecondary Elements of ADRPrivate JudgingMini TrailSummary Jury TrailOmbudsmanExpert determinationBrief Lines on Primary Elements of ADRNegotiation: In Negotiation, participation of Negotiators is voluntarily and there is no need of third person who facilitates or impose/bind the resolution process on the parties.Mediation: In Mediation there is an involvement of third party named as Mediator.
Mediator facilitates and even sometime suggest the resolution process which is ordinarily known as a “Mediator’s Proposal”. But he does not impose/bind a resolution process on the parties.Conciliation: In Conciliation the basic and fundamental process to facilitate the dealings are same and no technicalities are included when opposing parties are in family or industrial relation.
Even Syed Ahmad Idid suggests that, Mediation and Conciliation are terms which are used interchangeably and same in nature. But there is a thin hair line difference is present between mediation and conciliation that Conciliator cannot suggest any proposal relating to resolution process, for parties in dispute. Conciliators only try to make angry people calm so that they can discuss or solve their problems successfully. Arbitration: In Arbitration participation of Arbitrator is typically voluntary and must be a need of third party who acts as a private judge and imposes/bind a resolution process on the parties.Development of ADR in PakistanThere are many reasons why ADR was developed in recent years all over the world. The main reason is due to its different modes of operation as compared to litigation. Even in Pakistan, there are examples where the significance of ADR has been recognized. In International Islamic University Malaysia on December 2004, there is paper article “The Maladies of Delayed Justice and Growth of ADR” by Mr.
Justice Tassaduq Hussain Jilani, Judge of the Supreme Court of Pakistan, on the importance and development of ADR in Pakistan.”We (Pakistanis) are a vibrant society in transition. There are strains of social divide, cultural, economic, political, sectarian and ethnic. There is a need to promote consolidation and search for alternatives in every arena of social divide. ADR is an attempt in the judicial and quasi domains to promote these values and these institutions. I am of the considered view that the problems of backlog and delayed justice cannot be tackled unless there is an attitudinal change in the main actors of the judicial process i.e. the Bench, the Bar and the litigant public.
Case management and Alternative Dispute Resolution primarily aim at bringing about this attitudinal change. This process has to commence at the basic level i.e. at the subordinate judiciary level. The subordinate courts are the back-bone of the entire judicial hierarchy.
It is here that the concept of rule of law confronts the first trial. More than 95 % of cases are filed and pending and people in litigation suffer for months, years and decades and spend the best part of their lives waiting for that elusive Justice which at times is delayed or denied, and at times is bitter with expense it entails.” ADR Methods in Pakistani Legal System There are two methods in Pakistani legal system which are practiced and applied throughout the country.Traditional based ADR methodPublic bodies based ADR methodTraditional based ADR methodTraditional based ADR method refers to traditional, customary and century old local judicial system of Indo-Pak Subcontinent’s rural areas commonly known as Panchayat (in Punjab) and Jirga (in KPK and Baluchistan) where all the matters and simple cases brought in front of a respectable committee of honorable elders of that locality. The decision made by that committee must be accepted by the parties and no party could afford to disagree with the decision because of social rejection and boycott by the society.This informal justice system carries on giving its decision parallel to the proper and formal administration of justice system through courts.
The beauty of the system is that all the affected parties, i.e. the offender, the victim and the local community, are deeply involved in the process and efforts are made to resolve the conflict to the satisfaction of all concerned.The mission of this Informal justice system(Panchayat and Jirga) is to focus on repairing the damage done and restoring relationships, personal and communal, to their original state as far as possible They deal with a range of issues, including conflicting claims to land and water, inheritance, alleged breaches of the ‘honor’ code and intra-tribal or inter-tribal killings.But it is a fact and bitter truth now a days that this Informal justice system of Panchayat and Jirga loss its reputation. This point also arises in the Parliamentary Standing Committee of Law by the PTI MNA M.Ali.The term Panchayat gave PTI MNA Mohammad Ali “a look that the bill was only for Punjab”.
“Since sooner or later, the bill will be implemented all over the country, add the word Jirga also (in the bill) for the sake of Baluchistan and Khyber Pakhtunkhwa where the word Jirga is synonymous with Panchayat,” M.Ali said.But the Law Minister Zahid Hamid said that,”The word Jirga does not give a good look and it (the Jirga system) has not given good decisions”.Mr. M. Ali was quick to respond that, “Neither the history of Panchayat has been good as evident from the decision it gave in Mukhtaran Mai case. Law should not be averse to terms that non-government organizations dislike” he said.
That exchange ended in the committee deciding the bill to read “Panchayat or Jirga”. Public bodies based ADR methodPublic bodies based ADR method includes the Alternate Dispute Resolution related to public entities and interest. It includes Arbitration Councils, Union Councils, Office of Ombudsmen and courts of Conciliations.Arbitration Councils deals with issues of Divorce, Dowry, permission for 2nd marriage and maintenance of wife.Union Councils deals with the arbitration forum under the Muslim Family Law Ordinance 1961 and look after a few family related issues through elected councilors.Courts of Conciliation are formed under the Conciliation Courts Ordinance 1961 and vested with the limited powers of Civil, Criminal and Pecuniary Jurisdiction.Ombudsmen deal with third party, selected by an institution.
For Example University, hospital, corporation or government agency, so they deal with complaints by employees, clients or constituents.Benefits/Merits of Privatization of Justice through ADRDifferent ADR elements provide number of benefits and advantages in formal as well as informal litigation between the parties. Out of court settlements are in process in our judicial system and by the appointment of biased/neutral arbitrators, negotiators or conciliators by the court himself make the process transparent and clean which help the poor litigants to release from the pressure, by providing them the clear opportunity of reasonable settlement or effective case decision. Following are the advantages offer by different ADR elements Low CostADR is almost cheaper as relative to litigation in courts.
It is nearly based on the principle of “Low Cost No Cost” process of litigation. It is a less expensive way of litigation in which cost is efficient and party have not extra burden on his shoulders. In Informal Justice System there is no need to pay court fees or charges of lawyer and any other amount on the name of LEGAL PROCESS. In Mediation an early settlement naturally saves litigation expenses and other costs related to managing the dispute.Multiple Party DisputesADR is also suitable for multiple party disputes. In ADR many parties having a similar or different consent, in occurring dispute, come forward and take part in litigation under informal justice system to prove and prevent their stances. It creates understanding between the litigant parties which is not possible in courtroom battles. It defines the nature of relationship between parties and likelihood of settlements according to their stances.
Factor of Time and SpeedThe factor of time and speed also gave advantage to party who chose ADR to resolve its matter. ADR is faster than litigation occurs in courts. It saves time and money of both litigant parties. Litigation in court is the time consuming process. The factor of quick decision and resolution of dispute is deficient in litigation inside court.
However the commitment of speedy remedy on the given notified time is the only specialty and promise of ADR.Parties on Driving SeatParties are in control of ADR process while resolving the matter of dispute. They are sitting on the driving seats and have a freedom to choose an Arbitrators or Mediators who are qualified, well reputed and experienced in the area of that field in which dispute occurs.Especially in Arbitration, as it is a private method of settling disputes, so parties can tailor the arbitration proceeding in almost any manner they choose. For example, parties involved in arbitration can agree to limit the number of witnesses each side will present, set parameters on the amount and type of evidence that will be presented, and pre-determine what issues the arbitrator’s award should cover. Due to this freehand of parties while running the process of ADR, this procedure become flexible in nature.
Parties Choice of ForumParties’ choice of forum can increase the number of peoples who cannot believe the formal court system to solve their conflicts through a cultural mode. Even party have a right to choose the venue of gathering in Informal Justice System according to the nature of dispute. Also if we see the choice of forum internally in ADR then party is free to choose that from which element of ADR he want solution of matter.Power of Decision makerThe podium of ADR in the form of Arbitrator or Mediator is not a court of law and the decisions made by them have roots in equity or from customary law. Until now there is not a trend that court of law reject or disrupt Arbitrator’s findings. Due to this reason some parties prefer to choose ADR so that it increases satisfaction, have a little bit binding effect and resulting resolution stand for long period of time.Understanding of CaseADR expedite the understanding and information of related case of parties to them so that they can know about the nook and corners of their case.
We see that it is a common problem now a day that party itself cannot have any knowledge and knowhow about the basics and technicalities of its case due to which he doesn’t explain his case to lawyer in a better way. According to Zafar Iqbal Kalanauri, ADR improve quality of justice by giving parties a better understanding of their case on early stages by:-Provide an opportunity for clients to communicate their views directly and informally.Help parties to get core of their case and identify the disputed issue.Help parties to understand the relevant law and evidenceAgree them to exchange key information directly. ConfidentialityThe factor of confidentiality in ADR gives more power, strength and popularity to him in our Informal Justice System as well as in elements of ADR. The natures of some cases are so thin and sensitive that even Panchayat and Jirga hearings are not conducted in public. This includes alleged breaches of the honor code and intra-tribal or inter-tribal killings.The hearings of arbitration cannot listen and open in public so that’s why the decision made by arbitrators is not counted as a public record.
In Arbitration/ADR confidentiality of pleadings and documents can be maintained and Decision made by Mediator or Arbitrator may not disturb parties’ commercial relationship.Advantages of Informal Justice System as a part of ADRInformal Justice System takes place on a single site.It is more or less free of cost and having a principle of “NO COST LOW COST”.IJS is less prone to corruption.The process of IJS is exercised by a trusted people of society, community or locality.As the proceedings of IJS are exercised in some locality so language of that relevant locality used in proceedings which help every person who is a part of IJS.The decisions of IJS are made according to the rules known as RESTORING PEACE COMMUNITY.The procedure and decision of IJS is are on consent base and justice oriented.
The path of IJS allows parties for better access to justice.Demerits & Risks involve in Privatization of Justice through ADRNothing is perfect in this system of world. Same happen in case of ADR system. Where there is positivity, negativity revolves around. Where there is Angels, Demons blow strikes also. It is understood that we cannot deny the merits of ADR but also there are few demerits of ADR. It is pertinent to mention here that in my view these demerits do not affect the legitimacy and reputation of ADR.Now following are the demerits and risks involve in Privatization of Justice through ADR;Precedents for strong baseAlthough ADR is effective course of resolving the problems but there is a need of strong base in the form of precedents to strengthen it.
The decisions of important cases in courts became precedents so they gave powerful base to judicial system and helps them to enforce/implement them in future.If ADR system encourages the precedent then no doubt its follower’s increases and parties prefer to choose ADR so that it enhance satisfaction, have a binding effect and resulting resolution stand for long period of time.Unprofessionalism in decisionsADR criticized also on the basis of possible de-professionalism during a decision making.
For example, arbitrators usually solve matters related to money or financial problems. They have no authority to change the title, possession and issue the orders of Injunctions. A judicial court some time also turns back the decision if the decided issue is not present with in the clauses/scope of arbitration agreement.Power ImbalanceCountries like Pakistan have a great pressure factor that party who has more knowledge and stronger relations will overcome the proceedings. This factor is also raised by the PPP member of the Parliamentary Standing Committee of Law, Syed Naveed Qamar. He claimed that the legislation would put the poor litigants at the mercy of police and the powerful and he would append a dissenting note on this.”The process proposed in the bill would put the poor under greater stress, as police will be used in cases of a dispute between a feudal and poor farmer”.
“Murder and other similar cases should not be included in ADR,” he added. “I will write a note of dissent as this law will force poor people into out-of-court settlements. They will be in no position to refuse it. We should not make laws for the influential.
” Safeguard of PartiesIn proper judicial court, some rules are present, under which parties provide safeguard by the court himself. But in ADR this safeguard is neglected. The documents or secret points of parties easily transferred to opposite party.
The disclosure of information and communication depends upon on good faith but in Mediation there is no compulsion on good faith.Disadvantages of Informal Justice System as a part of ADRThere is no proper codified law is present on IJS.There are no special protocols and treatments are given to Informal Justice System as an element of ADR.The factor of influence of powerful party haunts IJS.Sometime IJS as ADR become Homogeneous/Heterogeneous in nature.There is inequality on gender base as there is domination of male in IJS.Sometime in underdeveloped locality, there is a non-protection of underprivileged class i.
e. Tenants etc.Disadvantages of Negotiation/Mediation as an element of ADRIn this process parties are not bound to continue Negotiation/Mediation.Negotiation/Mediation ae used as a stalling tactics i.e. try to avoid from certain question, to make opposition party wait so that you have more time to do something or create any scenario or weak point.
If there are multiple parties are present then exclusion of some parties from Negotiation/Mediation affect the final agreement. In Negotiation/Mediation opposite parties have a limited option of bargaining authority.Disadvantages of Arbitration as an element of ADRThe success in arbitration vastly depends upon on the will of arbitrator.If the award of arbitrator is against one party then it is difficult to use the right of appeal against that award.The result of formal arbitration proceeding gave us a formal award which is sometime uncertain in binding arbitration.Why ADR become popular now a day?It is common problem in our country that laws are made for public but they did not enforced and sometime justice is denied by public at large itself. Due to this factor ADR become popular day by day in society.
Following are some reasons, given in seminar conducted by ADR PILOT PROJECT in LAHORE which shows that how growth rate of ADR increase day by day:Huge pendent case in courtsLack of qualified judges, salaries and poor working condition in subordinate judiciaryA gap between parties and courtA gap between Bench, Bar and Litigant partiesExpensive justiceLack of information and communicationLanguage barrier is involvedJustice delayed justice deniedDefective and dishonest investigation at primary stagesBad custom of lawyers to prolong the case, mislead the judiciary and filing malafide and divertive suits and appeals in judiciaryGender and class discriminationInitiatives taken in regard of ADR in Pakistani Legal SystemFollowing are the initiatives taken in regard of ADR in Pakistani legal system with the help of some International and national institutions like;THE INSTITUTION FOR THE STUDY AND DEVELOPMENT OF LEGAL SYSTEMS SAN FRANCISCO, CALIFORNIA (ISDLS)ADR PILOT PROJECT in LAHORE etc.Steps are…Workshop on ADR method in May 2000.ADR performance assessment survey.
Study groups to California in May & June 2000.Post-civil justice reforms proposal.S.
89-A of the Civil Procedure Code, 1908 (Indian but amended in 2002) read with Order X Rule 1-A (deals with alternative dispute resolution methods).The Small Claims and Minor Offences Courts Ordinance, 2002.Sections 102–106 of the Local Government Ordinance, 2001.
Sections 10 and 12 of the Family Courts Act, 1964.Chapter XXII of the Code of Criminal Procedure, 1898 (summary trial provisions).The Arbitration Act, 1940 (Indian).Articles 153–154 of the Constitution of Pakistan, 1973 (Council of Common Interest)Article 156 of the Constitution of Pakistan, 1973 (National Economic Council)Article 160 of the Constitution of Pakistan, 1973 (National Finance Commission)Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when federal or provincial governments are at dispute with one another)Arbitration (International Investment Disputes) Act, 2011Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011.Concluding RemarksWith its merits and drawbacks there is no doubt that privatization of justice from the pathway of Arbitration/ADR will be preferable mode of resolving the family/commercial disputes, domestically as well as disputes arising with the cross border countries, against litigation.It is a fact and bitter truth of history that downfall of great powerful nations started when they failed to impose the rule of law and justice in their society.
This catastrophic situation is dramatize by Shakespeare as”O JUDGEMENT! THOU ARE FLED TO BRUTISH BEASTS, & MEN HAVE LOST THEIR REASON! ” The main agenda of our, as a law student, is that we must put together the fallen skeleton of judiciary and put the faith of public to judiciary again, recover/defuse the damage done at each and every podium. The public have now so many advocacies reflections in their nature that they want to bring their disputes at different level of judicial forum. So if they choose ADR for the resolution of their disputes then who cares! The human virtues of conciliation can be used to bring an end the social disputes and pending cases in courts. Law was created to satisfy human, individual & social, wants and needs.
ADR is a creature of law that is designed to fulfill the lacunas and use as a substitute of legal actions. Justice, judiciary and judges must consider ADR as there ally, not a rival. They treat him as a partner not as a competitor.
But in result ADR also respect justice, judiciary and judges and consider them as a friend not a foe.I summarize this assignment with the 2 best quotations of ROSCOE POUND as;Law must be stable and yet it cannot stand still. Law is experience developed by reason and applied continually to further experience.