The term “alternative dispute resolution” or “ADR” is often used to describe a wide variety of dispute resolution mechanisms that are alternative to full-scale court processes. The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or mini-trials that look and feel very much like a courtroom process. Processes designed to manage community tension or facilitate community development issues can also be included within the rubric of community based ADR.
ADR systems may be generally categorized as negotiation, conciliation/mediation, or arbitration systems. Negotiation systems create a structure to encourage and facilitate direct negotiation between parties to a dispute, without the intervention of a third party. Mediation and conciliation systems are very similar in that they interject a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Mediators and conciliators may simply facilitate communication, or may help direct and structure a settlement, but they do not have the authority to decide or rule on a settlement. Arbitration systems authorize a third party to decide how a dispute should be resolved.
Two kinds of ADR have been practiced in Pakistan; traditional ADR and public bodies based ADR. The formal refers to the traditional, centuries old system (which was good for simple cases but when it came to status quo issues, would readily succumb to elite capture) including Panchayat (in Punjab) and Jirga (in NWFP and Balochistan). The later includes the ADR attached to public bodies and included Arbitration Councils, Union Councils and Conciliation Courts. Arbitration Councils were confined to issues of divorce, permission for second marriage, and maintenance for existing wives. Union Councils provided the arbitration forum (through elected councilors) under Muslim Family law Ordinance 1961 and looked after a few selected family related issues. Conciliation courts were established under Conciliation Courts Ordinance 1961 and were vested with limited civil/criminal/pecuniary jurisdiction. Majority of the above initiatives were rendered ineffective as the local councils (which had an important role in these forms of ADR) were dissolved frequently and no clear strategies for capacity building of the members of these bodies were ever formulated.
Recent Initiatives regarding ADR in Pakistan
- Code Of Civil Procedure (CPC) which is the primary procedural law for civil matters in Pakistan , has been amended (under AJP) for providing enabling mechanism for Court Annexed ADR in Pakistan (Section 89-A)
b. Small Claims and Minor Offences Ordinance 2002 has been promulgated for providing exclusive forum (at the district level) for facilitating the resolution of smaller disputes. This law also provides ADR mechanism for facilitating the resolution and settlement of disputes within the framework of the formal court system. This could be transformed into an excellent forum for addressing disputes in the emerging justice sector in Pakistan;
c. Under the Access to Justice Program, the review of Arbitration Act represents a significant policy action. This review needs to be undertaken and capacity building initiatives put in place to promote effective arbitration regime in Pakistan.
d. A new local government system has been introduced in Pakistan, establishing elected local governments at the level of Union Council, Tehsil (Sub District Level) and the District level. The institution of Musalihat Anjuman (literally meaning conciliation forums) has been provided at the level of Union Councils for dispute resolution through ADR (including conciliation, mediation and arbitration). The finalization of the rules of Business for these bodies is essential to popularize the use of ADR.