Mediation matters

The movement of Alternative Dispute Resolution (ADR) in Pakistan has traditionally faced institutional unacceptance despite the worldwide acceptance of this mechanism and its relevance in modern legal frameworks.

For decades, mediation largely remained underutilised, with courts hesitating to engage and refer the cases to a mediator actively. The reluctance of traditional litigators, who routinely practice in the lower and high courts, to embrace mediation is also concerning, especially in sensitive family disputes, which are often highly complex and emotionally charged. The absence of early mediation frequently leads to prolonged litigation, draining both parties emotionally and placing an additional burden on the courts.

However, the Supreme Court of Pakistan’s decision in CPLA No 3519/2021, Muhammad Naseer Butt vs Additional District Judge and others, marks a cathartic moment. For the first time in a deeply sensitive family matter, the Honourable Supreme Court not only referred the case to mediation but also recorded a successful resolution of a seven-year prolonged litigation, thus creating a new precedent.

In the case referred to above, the resolution remained indefinite until March 2025, when Chief Justice of Pakistan Justice Yahya Afridi, Justice Miangul Hassan Aurangzeb and Justice Muhammad Shafi Siddiqui made a crucial decision to refer the dispute to mediation. The appointed mediator, Ms Sarah Tarar, a certified and accredited mediator notified under the ADR Act of 2017 by the Ministry of Law & Justice, guided both parties towards a successful resolution within five weeks.

It is essential to understand that family mediation is not an ordinary legal exercise. This process demands a deep understanding of the psychological sensitivity, emotional intelligence, and human behaviour of both parties, unlike civil/commercial disputes, which often conclude within a few days. Since the stakes are personal and emotionally connected to both parties, family mediation may last weeks or even months.

Thus, a mediator must have the requisite qualifications, experience and training, which are crucial for the outcome of any mediation. Sarah Tarar’s high-end training and international accreditation were critical in obtaining success. While authoring the judgment, honourable Justice Miangul Hassan Aurangzeb also noted and acknowledged her expertise.

In cases like these, credit must also be given to the counsels of both parties, as parties tend to heavily rely on their legal counsel for legal advice throughout the dispute resolution process. An advocate’s ability to support and understand the process of mediation can heavily influence the parties’ willingness to engage with the process. When legal representatives possess the necessary skills to understand the suitability of mediation and convey its benefits, they not only protect the interests of their clients but can also provide parties with the confidence required to pursue mediation.

Private dispute resolution centres, law schools and bar councils must consider this development and understand that the shift from litigation to mediation is not only necessary but also inevitable. By setting a new precedent, the Supreme Court did more than just resolve one dispute. The bench stressed the need for courts to adopt a pro-mediation approach, especially at the initial stages of case proceedings.

Early mediation would enable the parties to save litigation costs, receive quicker resolution, restore their relationships, and create their own outcomes, which is not possible when a case arrives at the courts' door. The decision also aligns with legal provisions, including the Alternative Dispute Resolution Act, 2017, and the Mediation Practice Direction (Civil) Rules, 2023. These legislations have been key to incorporating ADR into the country’s judicial structure.

Muhammad Naseer Butt v Additional District Judge, Lahore etc is more than just a family case – it is a judicial statement of intent. By recognising the importance of mediation, the vital role of litigators and the need to support trained and accredited professionals, the Supreme Court has signalled its strong commitment and conveyed to Pakistan’s legal fraternity that the future of dispute resolution lies in partnership and collaboration, not confrontation.

As the country moves towards a more accessible justice system, this landmark case serves as a blueprint for dispute resolution and its development. It is now the turn of the legal fraternity, institutions and judiciary to carry on this momentum and accept mediation as a key mechanism in resolving disputes, not as an alternative.

The writer is a lawyer and accredited mediator.