Alternative Dispute Resolution

Man is a social animal who feels comfortable living in a society rather than living in an isolated milieu. But living in a society is not always comfortable; men who live thus, intentionally or unintentionally countenance disputes and those disputes badly jog their appeasing life. Whenever a dispute arises the parties to the dispute normally prefer to knock the door of the court for resolution of that dispute.

The dispute is resolved there also but it takes an inordinate period of time in getting resolved and during the course of resolution, immeasurable money is disbursed by both the parties such as lawyers’ fees, court fees and convenience charges.

There is another method of resolving disputes called Alternative Dispute Resolution (ADR) which is frequently practiced in Western countries, mainly in the UK, USA, Canada and France,etc. It has worked effectively in these countries and has played a crucial role in the progress of western society. The Permanent Court of Arbitration is an institution which plays a pivotal role in pacific settlement of disputes among the countries of the world.

Alternative Dispute Resolution which is comparatively a new term for our society assists in resolving even decades old disputes outside the court. ADR is a process through which a neutral third person undertakes the responsibility to resolve the dispute between two parties by applying the methods of conciliation, mediation, negotiation and arbitration.

Mediation: Through this technique the parties in the dispute are free to come to o mutual consensus through dialogue without imposing any particular solution. The mediator or arbitrator who conducts the process of mediation helps parties come across different solutions of mutual interest. Beside that, the mediator also shoulders many responsibilities such as, exploring the concealed facts related to the dispute. He maintains the decorum of mutual dialogue between the two parties and shares neutral views so the parties could be diverted towards reconciliation. Mediation is followed by negotiations
Negotiations: Through this, the actual point of dispute is discussed among the parties while during the discussion, the Arbitrator keeps a close eye over both the parties so as to avoid any further rift between the two. After going through the negotiations, most parties become ready to go for reconciliation after giving away their minor interests that obstruct the way of peaceful settlement of the dispute.

Reconciliation: At the end of the day the mediator with all his expertise and efforts manages to reconcile the parties in the dispute without imposing a harsh sanction or verdict over the parties.

Usually contractual disputes, matrimonial disputes and disputes pertaining to property fall within the domain of ADR. A layman must not get carried away by the fallacy that the traditional "Jirga" is also a kind of ADR. Jirgas are in no way near to this methodology as the Jirga is in itself an imprecation in our society.

A decade of exemplary work has been done to promote the ADR concept in Pakistan. A few communities apply this method to resolve inter-community disputes as well. ADR was introduced to Pakistan by way of the Arbitration Act 1940. A year ago, the Sindh Assembly amended the Code of Civil Procedure (CPC 1908) to insert a clause relating to Alternative Dispute Resolution. Section 89 (A) Order X of 2002 of the Civil Procedure Code empowers the court to apply the method of ADR. Around 61 mediators were trained in Punjab with the intention to make the process of justice as speedy as possible.

Women in Pakistan are definitely going to benefit from ADR if it flourishes as expected. According to the provisions of the Family Ordinance 1961, an arbitration council shall be formed which will have the authority to resolve matrimonial disputes but lacks awareness to restrain women from acquiring this facility provided by law.

Despite all relentless efforts for its advancement, why has ADR not sprouted in the subcontinent as it has done in the western half of the world? This is a question that emerges in the mind of jurists as well as laymen. People of the subcontinent possess a mentality of dominating and defeating the opponent rather than subscribing to mediation and reconciliation. There are countless examples in the history of the subcontinent to corroborate this theory.

Islam views mediation as the most suitable method of resolving disputes and the one who plays the role of mediator will be rewarded. Allah has expressed the way of reconciliation between two parties in Surah Al-Nisa 4:35: If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things.

The judicial system in this country that is struggling to deal with around 1.10 million cases lingering in different courts.ADR will breathe life in dispute resolution. Justice Mansoor Ali Shah of the Supreme Court, while inaugurating the first ADR centre in Lahore said that it will be a game changer for the country’s judicial system.

Jurists, politicians, members of civil society and every right thinking member of the society should play their part in fostering this method of dispute resolution so dispensation of Justice could be made easy in this country.