KARACHI, June 9: The process of mediation as a method of alternate dispute resolution (ADR) will enhance rather than curtail the legal practitioners’ role and earnings, former Supreme Court chief justice Saiduzzaman Siddiqui and Sindh High Court Chief Justice Sabihuddin Ahmed said here on Saturday.
They were speaking at a seminar on ‘Mediation in commercial cases’ jointly organised by the SHC Bar Association and the International Finance Corporation of the World Bank. Advocate Navin Merchant, IFC programme manager, earlier made a presentation on the subject. A number of SHC judges, including Justices Sarmad Jalal Osmany and Khilji Arif Hussain, were present with a large number of lawyers.
The SHCBA president welcomed the establishment of the Karachi Centre Dispute Resolution (KCDR) as “it will help in providing speedy settlement of disputes, especially commercial cases”.
He described the ADR as an extension of the judicial system. Unnecessary and prolonged litigation was a no-win situation for all the parties involved and hampered the growth of business. The ADR provided for an expeditious, flexible and inexpensive approach, he said.
How alien the concept of ADR is to the present contentious and adversarial system of adjudication was evident from questions asked by lawyers at the end of the speeches. One senior advocate asked whether the mediators’ decision would be binding and, if so, would they not be running a parallel judicial system. He was told that mediation results in compromise agreements would be submitted to courts for pronouncement as decrees.
Another lawyer wondered whether the ADR was not a refined, free market version of the jirga system practised in tribal areas where political agents decided cases on the recommendations of jirgas. Yet another lawyer pointed out that influential landlords forced their decisions on unwilling parties in rural areas and courts of law were the only avenue they could approach for justice.
Justice Sabihuddin, who heads the KCDR advisory board, said the ADR would not supplant but would supplement the existing court system. The mediators would not only act as amici curiae (friends of the court) by narrowing down controversies and by facilitating and recording compromises for consideration of courts. The present system was slow and tardy as the parties brought in peripheral matters which were not really in dispute. A defendant might even question the parentage of a plaintiff.
Mediation, the CJ said, would help adjudicate matters expeditiously by framing only those issues on which the parties were really in dispute. Clients would have greater faith in their counsel and courts when their disputes would be resolved in a reasonable time. Lawyers would be involved in the process not only as counsel but also as mediators. In fact, ADR was not an alternative method but an informal or supplementary process to strengthen the judicial system. Since decisions would be based on compromise, there would be fewer appeals against them, the CJ said.
FORMER CJ: Justice Saiduzzaman, who is the chairman of the KCDR board of governors, said he would suggest a legal provision making an attempt at mediation compulsory before institution of a suit.
The mediation process had already been given legal recognition by amendments to Section 89-A and Order 10 of the Civil Procedure Code, which empowered the courts to refer disputes agitated before them to mediation. The ADR was not alien to our society as the panchayat system worked successfully in many areas to advance social peace and harmony. The Conciliation Courts Ordinance, 1961, established a forum for settlement of certain categories of criminal and civil disputes but it was lying dormant. Similarly, the potential of the conciliation provisions of the Muslim Family Laws Ordinance, 1961, the Industrial Relations Ordinance and the Arbitration Act remained unexplored.
The ex-CJ said the interminable, complex and expensive court procedures impelled jurists to search for alternative methods and the Arbitration Act was introduced as far back as 1940. But the arbitration proceedings lost their effectiveness and informal character due to the frequent intervention of courts at every stage. India replaced the 1940 Act by the Arbitration and Conciliation Act in 1996, which unsuccessfully tried to minimize court interventions. Pakistan made no effort in this regard.
He suggested that the control of courts over appointment of arbitrators and their jurisdiction should be reduced, the arbitrators should be empowered to pass interim orders to protect the disputed property and their unanimous awards should be executable as decrees straightaway without reference to courts.
Mediation, he said, was particularly required in a rapidly industrializing country. The process was supplementary to the existing legal system and would not affect the role of lawyers. In the United States and England, many successful lawyers have turned to mediation, finding it more rewarding in terms of clientele, earnings and saving of time. The majority of mediators trained by the KCDR belonged to the legal profession, he said and asked lawyers to make full use of the facilities available at the centre.
Ms Merchant said mediation was a flexible, non-binding procedure wherein impartial, knowledgeable people assisted the parties to reach an agreement and solve their problems. The option to approach courts remained available to the parties. Mediation and conciliation proceedings were kept confidential and could not be pressed into service in litigation. It was less costly and the maximum fee ranged from Rs7,500 for disputes involving assets worth up to Rs1 million and Rs50,000 for matters valued at Rs6 million and more, she said.
