Justice outside the courtroom

Representative image of a hammer. —Canva

A father plays with his two children on one of the two freshly mowed lawns between the gray structures of the main building and the Chief Justice’s Complex of the old Islamabad High Court.

The father’s lawyer sits on a nearby bench, overseeing today’s scheduled meeting, graciously granted by a family judge. The children’s mother, waiting on the adjacent lawn, is informed by her lawyer that time has passed. The two proceed to pick up the children. The father hands them over after tight hugs and tears in his eyes. The mother looks visibly distraught as she leaves, while the children wave goodbye to their father until they meet him again next month. The custody case is ongoing and one can only guess when it will end. After all, a family judge is faced with a caseload of over 80 cases a day.

Pakistan has 2.3 million pending cases and only 4,300 judges across the country adjudicating them. There are approximately 60,000 cases pending before the 16 judges of the country’s highest court. According to official data from the Law and Justice Commission of Pakistan, it takes an average of 15 years to complete a civil case. Worse still, Pakistan’s judiciary currently has 20-25% vacancies, mainly due to the legal community’s reluctance or lack of appropriate skills to qualify as judges.

The huge backlog of cases is primarily to blame for the highly litigious nature of society, lack of alternative dispute resolution mechanisms and lack of an effective case management system to filter frivolous suits and FIRs. judicial system inherited from former colonizers. Countries facing similar challenges have tried different methods to clear the backlog of cases; however, only one mechanism seems to stand out in terms of efficiency and effectiveness: alternative dispute resolution (ADR).

The term “alternative dispute resolution”, coined during the Global Pound Conference series held in the late 1970s in the US, refers to legally and constitutionally recognized mechanisms and methods for resolving disputes outside the courts. Negotiation, mediation, settlement conferences and arbitration are all forms of ADR, with mediation taking center stage as one of the most effective, internationally tested dispute resolution mechanisms used around the world.

Mediation is a process in which a negotiated settlement between disputing parties is facilitated by a trained moderator, called a mediator. Since its formal integration into the English justice system following the Woolf reforms (1998), cases worth £190 billion have been successfully resolved through mediation in the UK. Since the Turkish Mediation Law was passed in 2012, Turkiye has resolved over three million cases, and in 2020 alone, Chinese courts referred 5.1 million cases to court-based mediation centers. Fifty-six countries are currently signatories to the Singapore Mediation Convention, which enables the effective enforcement of cross-border settlements in member states. What is most encouraging is that Pakistan has formally accepted mediation and so far with open arms.

Due to the ineffectiveness of the Arbitration Act, 1940, the legislature formally introduced mediation into the Pakistani legal system through a series of laws and amendments. Islamabad ADR Act 2017, Sindh CPC Amendments to Sections 89A and B, Punjab ADR Act 2019, Khyber Pakhtunkhwa ADR Act 2021, Balochistan ADR Act 2022 and the recent Mediation Act The Gilgit-Baltistan Act 2023 (adopted by the UK Cabinet and pending approval by the GBA) establishes a robust nationwide mediation mechanism that allows for mediation in all civil, family, commercial and similar disputes, including criminal offences. punishable by up to three years, through mediation by accredited and notified mediators.

Under the above-mentioned provisions, the minutes or details of the mediation proceedings are protected and confidential, the maximum duration of mediation is 45 to 75 days, and robust regulatory oversight mechanisms have been established to ensure the quality of mediators and mediation centers.

The Supreme Court Task Force on ADR, headed by Justice Ijaz ul Ahsan and comprising one judge of the Supreme Court and representatives from the legal departments of each jurisdiction, is making progress in institutionalizing a robust mediation ecosystem across Pakistan. In Sindh, Islamabad and Gilgit-Baltistan alone, over 250 internationally accredited mediators and 1,000 mediation advocates have been trained and notified, and the federal government and the relevant provincial high courts have notified various ADR centers offering domestic and international mediation services.

The Musaliha International Center for Arbitration and Dispute Resolution, a notified ADR center, has received over 250 court-referred cases for mediation in the last six months alone and maintains an impressive success rate of 78%, with an average resolution time of four to five days.

Recently, the IHC Attached Mediation Center was launched, which allows the district court to easily refer cases to the court-managed mediation center. Presence of internationally accredited mediators on the senior benches such as Justice Jawad Sarwana, Justice Sardar Ejaz Ishaq Khan, Justice Adnan Chaudry, Justice Jawad Hassan, Justice Miangul Hassan Aurangzeb, Justice Tariq Mehmood Jahangiri, Justice Arbab Tahir and Justice Mansoor Ali Shah gave the much-needed impetus to the Pakistani mediation movement.

Pilot interventions led by provincial governments, supreme courts and civil society organizations such as the Legal Aid Society (LAS) have produced amazing results. In terms of the legal framework, LAS provided drafting and technical support to the newly enacted “Gilgit Baltistan Model Mediation Law, 2023” and has done the same in the past for amendments to Art. 89A and B of the Sindh Code of Civil Procedure which led to a formal mediation system being established by law.

To empower citizens, LAS conducted over 2,000 community awareness sessions across Sindh, providing critical awareness to over 30,000 citizens. To enable these citizens and others to benefit from ADR services, LAS first trained 250 notified Saalis (accredited community mediators) in Sindh, 50 lawyers (appointed by the high court) in Islamabad as internationally accredited civil and commercial mediators and 50 senior community members , religious leaders, lawyers and heads of Local Support Organizations as accredited mediators throughout Gilgit-Baltistan.

LAS partnered with judicial academies and trained 100 senior civil judges, civil judges and judicial judges in Sindh and also conducted similar training for 60 judges in Islamabad. Overall, LAS has trained and trained over 750 community, bar and bench ADR professionals to meet public expectations. Having built a robust delivery mechanism for the mediation-focused ADR ecosystem across three jurisdictions, LAS recognized the need for a state-of-the-art ADR center and accordingly established MICADR in 2022 with 80 internationally accredited and court-notified commercial mediators in Sindh and Islamabad and 17 senior arbitrators (including former Chief Justice of Pakistan).

It is extremely necessary for the government to create a massive awareness campaign to inform the general public about the existing mediation ecosystems. For example, LAS conducted public awareness sessions with over 30,000 citizens in eight districts of Sindh, resulting in over 2,000 cases being referred to formal ADR channels.

Moreover, devolution of mediation systems to district and tehsil levels is essential to ensure ease of access. Police Dispute Resolution Centers, district administration offices and local governments are just some of the many formal structures that need to be properly equipped and connected to existing mediation ecosystems to provide timely and targeted dispute resolution services to individuals, families and entities. Members of the legal community must be trained as mediation advocates to effectively represent their clients in mediation proceedings. The recent training of 750 members of the Sindh High Court Bar Association as mediation advocates indicates the growing interest in mediation among the legal community.

More importantly, given that investors are always more willing to invest in jurisdictions that have robust ADR ecosystems – Saudi Arabia, Qatar and the United Arab Emirates have established effective trade intermediation ecosystems and have officially ratified the Singapore Convention in the last three years – Pakistan must prioritize building an effective ecosystem.” Investor-State Mediation” where time- and cost-saving mediation platforms are exhausted in international investment disputes before investors are referred to arbitration or court. Perhaps this could be adopted by the Special Investment Facilities Board (SIFC) as the most important program to improve the investment climate in Pakistan.

The author is an internationally accredited civil and commercial mediator. He can be contacted at: (email address protected)

Disclaimer: The viewpoints expressed in this article are those of the author and do not necessarily reflect Geo.tv’s editorial policy.

Originally published in News