A new mediation act? Way forward for Pakistan
Since 2017, 30688 cases had been referred to mediation, out of which 14239 references had been successfully mediated until January 2019.
Mediation has achieved substantial results through the mediation centres established by the Lahore High Court, Lahore.
Recent amendments to the CPC by the provinces and the federal territory have provided for the mandatory referral of certain disputes to mediation as a preliminary measure.
One of the obstacles faced by mediation in its fight for an independent existence has been the resistance from lawyers.
Lawyers, due to their legal up-bringing, find it difficult to adjust to the more ‘client-centred vision of dispute resolution’ which is an essential feature of mediation.
Some believe that it is a question of public perception and a need for clients to feel they have had their day in court and that justice has been seen to be done.
More awareness is required to be brought among the society, what is more important is the need to shift national culture.
After all, support from public, at large, is the key element for mediation to become successful alternative.
The results and benefits achieved so far from the mediation centres established by the Lahore High Court, Lahore should be promoted through public awareness campaigns so as the old mindset of ‘see you in court’ can be shifted towards the amicable settlement.
Besides having a traditional history of resolution of disputes though alternate judicial system of Panchayat and Jirga Systems over the centuries, we need to address issues owing to which we have not been able to utilize the mediation mechanism.
It is seen that despite the establishment of mediation centres by the Chambers of Commerce and Industry and few other organizations, the mediation mechanism is unable to mark its place as an alternative dispute resolution mechanism.
Since a high degree of conviction is required by both the parties to conduct mediation, the benefits of mediation need to be promoted among the public, specifically to the business community.
Pakistan also needs to develop separate laws governing the mediation process and the enforceability of the agreements reached through mediation.
An independent mediation act would best serve the purpose in provision of cost effective and efficient resolution of disputes in Pakistan.
Through such legislation the cases best suited for mediation should be made mandatory as a part of pre-action protocol before the commencement of proceedings.
Besides ‘court-annexed’ mediation, justice models for ADR delivery including ‘court-referred’ and ‘court-connected’ mediation may also be developed and such mediation centres should be established considering the recent ADR Acts for the provision of time and cost-effective resolution of disputes.
The Punjab Alternative Dispute Resolution Act 2019 (PADRA) requires the prerequisite of being established under the Companies Act 2017 to become an accredited ADR Centre.
This, no doubt, will bring a regulatory supervision as well as a transparency of working of such ADR Centres.
At the moment, there is no such body available in the country regulating the ADR practitioners.
The rules, regulations and the procedure for the accreditation of the ADR Centres are yet to be formed. A regulatory body may be established by the State that should work for the establishment and regulation of private ADR Centres.
The globally recognized regulatory bodies working for the provision of alternative dispute resolution like Centre of Excellence for Dispute Resolution (CEDR) and Chartered Institute of Arbitrators (CIArb) be facilitated at the state level and such ADR Centres should be established in the major cities of Pakistan.
The use of mediation as an inexpensive and efficient dispute resolution system should be made popular among the public through awareness campaigns at the district level.
Seminars may also be conducted among the business community through the regional Chambers of Commerce and Industry and simplified procedures may be introduced for the business community.
At the global level, the use of mediation is becoming more structured with pre-action protocols in many countries providing that the use of the process should be encouraged or made compulsory.
What is relatively little known in the Pakistani context is whether commercial dispute resolution in cross-border transactions, or domestic e-transaction disputes, can be effectively amenable to an on-line dispute resolution system.
Recently, the world has had to adopt to a new way of working, we have seen a move to virtual arbitrations and virtual mediations and they work.
Besides working on bringing separate mediation laws, Pakistan might also need to seriously think about signing ‘The Singapore Convention on Mediation’. — Concluded
—The writer, based in Karachi, is a Barrister, Arbitrator, Mediator and Lecturer.
