October 02, 2006	Monday	Ramazan 8, 1427

SETTLEMENT of disputes by mutual reconciliation is as old as the human civilization itself. During the ages, when there were no law courts, disputes used to be settled through mediation by a third person. Even today, particularly in villages, while some cases end up in a court of law, many are settled amicably out of the court through mediation.

The people are inclined to settle their disputes through mutual reconciliation. If we could somehow devise an appropriate institution and a mechanism to encourage this method, litigation would fall dramatically. Alternate Dispute Resolution (ADR) is such a mechanism.

It is an alternative to formal justice system and commonly referred to as out of court settlement. Sometimes a court itself may refer a dispute to mediation known as court annexed mediation. ADR may be in the form of arbitration or meditation, voluntary or non-voluntary, binding or non-binding.

It may give a decision or award, as in arbitration, or just lead to a reconciliation or settlement as in a mediation. Mediation is the most common form of ADR.

Mediation is a process in which the opposing parties or disputants come together, preferably at a neutral place, and discuss and reconcile their differences to reach an agreement with the help and in the presence of a neutral mediator who has no vested interest in the dispute and acts merely as a facilitator.

Mediation proceeds in an atmosphere of complete trust and without fear of breach of confidentiality. Nothing from the proceedings is put on record. Even the paper for jotting notes are supplied by mediator to disputants and these notes are destroyed at the end of the session lest they may be used against either of the parties. In majority of cases, mediation process finally ends up in a settlement. Next step is an agreement on a proper stamp paper. The agreement is then registered with a competent authority or authenticated before a court of law.

The settlement of the dispute thus becomes final and irrevocable. The execution is done simultaneously with the agreement. Non-compliance could lead the affected party straight to execution petition. However, if no settlement or agreement is reached, parties have the option for litigation.

The mediator is the pivot in the whole process of the alternate dispute resolution. In fact, the outcome of a mediation is directly proportional to the efforts and efficacy of the mediator. Hence, the mediator must have the experience and the expertise relevant to the subject matter of the dispute as well as a flair and skill for human relations.

His all-important task is to promote understanding and reconcile the parties’ differences necessary to reach an agreement. He is a neutral third party facilitator and the parties should have complete faith and trust in him. It is also important that he should objectively enlighten the disputants about the merits and demerits of their respective claims and give them an inkling about the likely outcome if the case were to be decided in a court of law. This might further facilitate the settlement.

During the recent years, the alternate dispute resolution has gained popularity not only in the under-developed countries but also in the developed ones. Why? Its following merits speak for themselves:

It is a voluntary process in which the parties, not the mediator, make the decision; because the voluntary settlement reached is deigned by the parties themselves and it matches their interests. There is no risk of adversarial decision.

It is more accessible and understandable to a lay man, less expensive and less time-consuming. It settles the matter at the threshold of the first stage and for all times to come, instead of resorting to all possible appeals.

It promotes rule of law, people’s participation, legal awareness and respect for the rights of others.

In Pakistan, the judiciary is deluged with litigation. It has a mountain of backlog. Lawyers have a field day and their clients have headache, both physical and financial. The Alternate Dispute Resolution may provide an answer to this problem.

Although there are provisions in the Pakistan Civil Procedure Code for alternate dispute resolution, practical steps seems to have not been taken by the government to promote ADR in the country, except that last year such a mechanism was set up under the Central Board of Revenue to settle tax disputes.

But this is not a fully neutral mechanism, because the CBR itself constitutes the ADR committee which include a senior tax official. The other members being from amongst a chartered accountant, a high court advocate and a reputed taxpayer or businessman, none of them expected to be fully neutral for obvious reasons.

By far, the largest number of cases fall in the domain of civil disputes where, though desperately needed, no formal ADR mechanism is available. Initiatives, therefore, need to be taken in this regard on urgent basis.

Primarily, it is the government’s constitutional obligation to provide natural justice and the rule of law for all of its citizens. However, the work may also be taken up by NGOs under official sponsorship.

The ADR forum for the civil cases should be based broadly on the following principles: it should be on a voluntary basis; it should use the process of mediation to reconcile differences and settle the disputes; mediation should not be binding in any sense until an agreement is reached; mediator should be a neutral person. Mediation should be free of cost for the disputants.

With relatively less efforts and expenditures they may help make a big difference in peoples’ life. The ADR forums may easily be set up at community centres, civic centres, union and district councils etc

The cost factor for this task would not be substantial. In the beginning, it may be possible to attract some committed social workers to work on voluntary basis. But once this programme gets going and starts delivering, funds could be mobilised from private and government sources. It would be possible then to pay appropriate fees to mediators so as to attract the best possible talents for the job.

To begin with, some model ADR forums should be set up, later to be replicated on country-wide basis.

No doubt, the ADR mechanism would prove an effective answer to our judicial problems. It may well become instrumental in providing access to justice and ‘justice for all’.