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February 15, 2018

Bill to introduce alternate dispute resolution system to be tabled in PA


February 15, 2018

A bill to formally incorporate an Alternate Dispute Resolution (ADR) system to settle civil and commercial law matters out of court is all set to be tabled in the upcoming session of Sindh Assembly in order to lessen the burden on the province’s regular judicial system.

The bill’s draft was approved on Wednesday in a meeting chaired by Sindh Minister for Law Ziaul Hassan Lanjar. Four other proposed bills to be tabled in the session likely to commence from February 25 were also approved.

“The ADR system has been in practice in law and justice systems of many other countries to provide speedy justice to people in cases of mostly civil nature that otherwise should not consume the time of regular courts,” said the law minister at the meeting. Lanjar added that cases to be settled under the ADR system would be monitored by district and sessions judges and magistrates on a regular basis.

Draft bill

The ADR system would be inserted in the province’s law and justice system through a bill titled “Code of Civil Procedure (Sindh Amendment) Bill-2017.”

The bill, which will insert an amendment in the Code of Civil Procedure, 1908, states, “In Section 2 of the Code of Civil Procedure (Act No. V of 1908) the following amendment shall be made: Alternative Dispute Resolution means procedure for settling disputes without court trial, namely arbitration, mediation, conciliation or negations.”

Mediation means a process in which a person (mediator) actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle the terms of resolution, it states.

The draft further states, “Notwithstanding any other laws for the time being in force, the court may use ADR methods to resolve cases of civil or commercial matters.” According to the document, the case may be forwarded for ADR by referable of the cases to a mediator/conciliator in three circumstances; one, when a complaint is presented, the court shall examine and assess the possibility of resolving the case in a way which is to the advantage of all parties under one of the methods of ADR; second, if at any stage of the case, the court considers that there is a possibility of resolving it in a way which is to the advantage of all parties under one of the methods of ADR; and third, upon consent of all the parties concerned.

Sub-section (ii) of Section 18 in the draft of the bill pertaining to fixing of date and time reads: “Upon referring the case for ADR, the court shall direct the parties to appear before the appointed mediator/conciliator on the date and time fixed by the court and shall set a time for returning of the reference which shall not be more than sixty (60) days from the date of reference. The mediator/conciliator may submit a written request for extension of time period which may be extended for no longer than 30 days by the court, on showing good cause which shall be noted in a court order.”

The draft further adds that the court upon deciding to refer a case to ADR, may determine the amount of fee, if any, to be paid to the mediator/conciliator by the party or parties. “If a settlement is reached between the parties, the mediator/conciliator shall prepare a deed of settlement containing terms of such settlement, signed by the parties and submit it to the Court on the day fixed by the Court together with a certificate that the settlement between the parties was voluntary, it states.

However, if no settlement is reached, including if any of the parties refuses to participate in the process, the mediator/conciliator shall record the statement of the fact and submit it to the court on or before the date fixed.

Who can mediate?

As per the bill’s Section 1C, the following can be appointed as mediators/conciliators: persons who have had a minimum of 40 hours of skills-based training in mediation and/or conciliation and have been accredited by a reputable organisation or institution; organisations/institutions/court-annexed mediation centres that specialise in ADR methods and maintain a list of trained mediators or conciliators; a judge nominated by the court to conduct ADR who has been certified as a mediator/conciliator by the Sindh Judicial Academy or is accredited; a “Salis” appointed under the Small Claims and Minor Offences Ordinance 2002; and any other person agreed to by the parties and upon approval of the court in accordance with the law.

Meanwhile, in the Wednesday meeting, four other draft bills were also approved by Lanjar, including one envisaging the setting up of special centres to provide free legal counselling to poor and deserving people, especially labourers; a bill to establish Sindh Law and Justice Commission comprising chief justice of Sindh High Court, law minister, advocate general, and others; a bill to ban interests on small loans obtained by people on personal basis and a bill to amend the Sindh Prisons Act to incorporate amendments in jail manual to provide due facilities to inmates.

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