Encouraging ADR

The delays and legal complexities as well as the exhausting costs that are part of formal litigation were lampooned in the fictional case of Jarndyce v Jarndyce in Charles Dickens’ ‘Bleak House’. The twenty-episode satire published between 1852 and 1853 attracted criticism from legal professionals for exaggerating the interminability of legal proceedings – though the case did become a euphemism for laborious litigation and attracted the legal reforms of 1870 in the United Kingdom.

The fictional suit concerned a generational and unceasing inheritance dispute that stretched so much, in time and costs, that it devoured the whole estate in contention. The resemblance between this fictional depiction to the legal system of Pakistan is uncanny.

As a student barrister in the United Kingdom, I first came across the term “overriding objective” which is the governing principle behind the mechanism of the courts and tribunals of the UK, to deal with cases justly and at proportionate costs. The latter segment of this rule, made part of the Civil Procedure Code in 1998, necessitates out-of-court settlement of disputes rendering litigation a last resort only, thereby formally acknowledging alternative dispute resolution or simply ADR. Failure to consider ADR or advice from the lawyer to consider ADR would entail cost consequences.

The results of this compulsion were promising, and since 2013, following the ‘Review of Civil Litigation Costs’ carried out by Lord Justice Jackson (Final Report issued in 2009), civil procedures have been modified to encourage parties to use mandatory outside the court resolution of dispute methods before knocking the court’s door.

Through these reforms, courts in the UK have essentially shed the burden of vexatious, imaginative, and fanciful litigation – or at least cut down the number of issues of claims that reach the courts. It has also resulted in saving costs, resolving straightforward disputes by mutual cooperation of parties, saving time, and avoiding legal and procedural convolutions.

Pakistan, on the other hand, lacks such an approach mostly due to stagnant colonial laws and non-coherence amongst provincial legislations. Therefore, not only civil but criminal cases reach already overburdened and staff-deprived courts of the country whereas more than half of these can be stopped and resolved earlier on or at the very least trimmed down to important issues only.

There are some worrisome disconcerting statistics on the depleting condition of Pakistan’s legal system. It is enough to quote that a backlog of more than 50,000 pending cases of all nature is currently awaiting justice in the apex court alone; this was 18,000 during former CJP Iftikhar Chaudhry’s tenure. The numbers are increasing. Amongst the reasons indicated, many factors contributing to this case pile up include lawyers’ incompetence, disinclination, and reluctance to resolve the squabble or at least curtail disputed areas in a suit outside the court or during the pre-stages of litigation.

The dilapidated judicial system also plays its role where judges find themselves under no legal obligation to encourage mandatory dispute resolution before litigation can commence. Outdated laws and non-compliance along with the inert vigour of awarding costs against vexatious claims or those that could have been resolved if parties cooperated and legal representatives encouraged resolution outside the courts, all play an imperative part in contributing to pending case mess. At the governmental level, ADR fails to allure policymakers’ attention. This burden can be reduced by encouraging ADR, training lawyers, setting up institutions like mediation centres, etc. to facilitate such settlements.

ADR can take many forms. From adjudicative options like arbitration, adjudication, and expert determination to non-adjudicative mediation, negotiation, conciliation, written offers, and/or inter-client discussion, parties to a dispute can take advantage of ADR processes. The advantages include lower costs, speedy settlements, control of the process with a tailored procedure to meet the needs of each case, choice of forum, a wider range of potential outcomes, the flexibility of the process, and especially for commercial and tech-industry clients, confidentiality.

Mediation and negotiation do exist in Pakistani culture in the form of panchayats, jirgas or the khuli kutchery, but these need to be regularised and given proper legal footing at the national level. Mediation or ADR facilitating bodies should be registered and the decision/award recorded by the courts to expedite enforceability.

In Pakistan, some gains have been made recently. The Alternate Dispute Settlement Act of 2017 appears to have the potential to offer a system of dispute settlement for civil, criminal, and commercial disputes. Provincial governments have enacted legislation to reflect this. For example, Punjab has passed the Punjab Alternative Dispute Resolution Act 2019; Sindh has passed the Code of Civil Procedure (Sindh Amendment) Act 2018 on 89-A, in addition to section 2 in definition and Order X Rule I; Khyber Pakhtunkhwa has passed the Alternate Dispute Resolution Act, 2020 (Composition of Saliseen Selection Committee); and Balochistan has passed the Balochistan Local Government Act 2010. However, a more robust and coherent system of ADR must be formed and implemented following the British model to save resources of the judiciary that can be invested in more pressing issues.

Swift justice is the sweetest, as said by Francis Bacon – an alternative way of saying justice delayed is justice denied. This can only be secured if the legal system is made to get rid of unnecessary, meritless, or simple disputes that can be settled elsewhere. The economic cost of entertaining such claims outweighs the notion of the right of accessibility to the courts. Mandatory consideration of ADR before a suit reaches the court is a must to get rid of the case burden that Pakistan’s courts suffer.

The writer is a lawyer.