isputes are a natural part of life. For many people, disputes are scary. They try to avoid those at all costs. Disputes multiply due to injustice, unfair access to resources, changing relationships, the pursuit of wealth through unfair means, lack of education, unemployment, poverty and discrimination.

Courts of law are an obvious dispute resolving forum. However, petitioning a court is often viewed as a last resort. It has been said that a nation can be judged from the number of cases pending before its courts. In Pakistan, some cases remain pending for decades.

Almost every statute / law provides a specific time for deciding the cases. However, not all cases get decided within the specified time mentioned in the statutes. This is a violation of Article 37 (D) of the constitution and principles of swift justice.

Swift justice is considered the sweetest justice. Delay in the dispensation of justice drains even a just judgment of its value. Delays in the dispensation of justice often cause litigants to resort to alternate ways for settlement of their disputes.

Alternative dispute resolution (ADR) is a way of trying to resolve a dispute without having to go to a court and without a regular trial. ADR is a vehicle for improving communication between the parties and providing a forum for a creative resolution to the dispute that better meets the needs of the parties. The parties enlist the services of a neutral person/ party who helps them reach an agreement an avoid litigation and works towards a voluntary/ consensual agreement.

There are four general types of ADR. They work in different ways. Each of these types is suited to a class of disputes.

1. Negotiation: the parties voluntarily participate in the settlement of their dispute without a third person intervention.

2) Mediation: a third person (mediator/ salis) facilitates the resolution process and assists the parties in discussing the differences in their legal position to help them come to an agreement.

3) Conciliation: the parties use a conciliator who meets the parties, both separately and together, and attempts to resolve their differences.

4) Arbitration: the dispute is resolved by an arbitrator as a private judge who imposes a resolution. Arbitration frequently occurs after the parties to a contract agree that disputes concerning the agreement shall be resolved by an arbiter.

Under Article 37(D) of the constitution, the state has a responsibility to ensure inexpensive and expeditious justice. A legislative attempt was made to this end when Section 89-A and Order-10 Rule-1(1A) were inserted in the Code of Civil Procedure 1908 through Ordinance No 34 of 2002. The provisions are as follows:

Section 89-A.

The court may, where it considers necessary, having regard to the facts and circumstances of the case, with the object of securing expeditious disposal of a case in or in relation to a suit, adopt with the consent of the party’s alternate dispute method, including mediation and consultation.

Order-10 Rule-1(1A).

The court may adopt any legal procedures not inconsistent with the provision of this code to:

1) conduct preliminary proceedings and issue an order for expeditious proceeding of the case.

Alternate dispute resolution is often less expensive, less time-consuming, less stressful and ultimately beneficial. It saves money, speeds up settlement and promotes reconciliation. 

2) Issue with consent of the parties’ commission to examine witnesses, admit documents and take other steps for the purpose of the trial.

3) Adopt with consent of the parties any alternative method of dispute resolution including mediation, conciliation or any other means.

These provisions empower courts to enable and encourage the parties to adopt ways and means for settling the dispute through ADR method. Such methods not only relieve the parties of expensive and lengthy litigation but also save time for the court.

The government of Khyber Pakhtunkhwa promulgated the Alternate Dispute Resolution Act in 2020. Under Section 2 of the said Act, Alternate Dispute Resolution means the process in which parties agree to resolve a dispute through other than formal adjudication by the court.

Under Section 3, the court, deputy commissioner, or any other officer nominated by the government can refer a civil dispute for ADR with the consent of the parties when intricate questions of facts and law are not involved.

For further facilitating the reference, the court, or referring authority, frames issues with the parties’ consent. It also stipulates a timetable for completion of the ADR proceedings, not exceeding three months. The time can be extended to another three months on the application of both parties.

Under Section 4, criminal cases which are compoundable under Section 345 of the Criminal Procedure Code can also be referred to saliseen for ADR with the consent of the parties.

The saliseen are notified under Section 7 by a selection committee at the divisional level for each district on the recommendation of the district administration.

The saliseen are selected from amongst lawyers having seven years of practice, retired judicial officers, retired civil servants, religious scholars and other persons of known integrity for a period of three years. Necessary training is arranged for the saliseen at the Judicial Academy or other accredited institutions.

The referring authority under Section 8 refers the matter for ADR with the consent of the parties to the penal of saliseen. On completion of the ADR, the matter is submitted before the court under Section 10 and the court under Section 15(1) pronounces judgement/ decree or order in terms of settlement. It is executed under Section 16.

Section 17 prohibits appeals or revisions against the said judgment/ decree or order. Cases pending before the appellate or revisional court can also be referred to the ADR for settlement under Section 23 of the Act. Section 21 has made applicable the provision of the Oath Act and has excluded the provision of Qanoon-i-Shahdat.

Section 24 provides that the code of conduct for the saliseen shall be framed by the Home and Tribal Affairs Department of the government. If a salis violates the code of conduct, they shall be removed from the penal of saliseen by the selection committee. The proceedings of ADR are confidential as per the mandate of Section 11

Benefits

ADR is a universally accepted practice, less expensive, less time-consuming, less stressful and ultimately beneficial. It is fair, voluntary, confidential and led by a neutral mediator or arbiter.

ADR also helps reduce the backlog of cases before a court. Unfortunately, not all litigants are aware of the advantages of the ADR. The government has a responsibility to spread awareness among the public about the benefits and advantages of ADR through seminars and publications in print, electronic and social media.

The writer is a Peshawar-based advocate of the Supreme Court of Pakistan. He can be reached at ziaurrahmantajik123@gmail.com.