ADR ESSAY. Conflict resolution, history, objectives and need of ADR in Pakistan in light of committee report and islamic injunctions, modes of ADR etc. PDF

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ADR ESSAY. Conflict resolution, history, objectives and need of ADR in Pakistan in light of committee report and islamic injunctions, modes of ADR etc....

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Humna Sohail 06381413010 Assignment 01

INRODUCTION TO ALTERNATE DISPUTE RESOLUTION [COMMENTS ON JOURNAL ARTICLE]

I.

Prologue Dispute resolution is an indispensable process for making social life peaceful. Dispute

resolution process tries to resolve and check conflicts, which enables persons and group to maintain co-operation. It can thus be alleged that it is the sin qua non of social life and security of the social order, without which it may be difficult for the individuals to carry on the life together1. II.

Meaning of Alternate Dispute Resolution Alternate dispute resolution [hereinafter referred as ADR] as opined by Mwenda2, is

said to be virtually any process whose objective is to facilitate the resolution by consensus of the parties than imposing the resolution to the parties in an adjudicative manner. It is a method used to resolve disputes without having recourse to the court. As the abbreviation indicates ADR offers an alternative for an adjudicative mechanism. It is an age-old tradition of society through which disputes are resolved amicably and which concerned parties accept. ADR is a practice that promotes the rhetoric of peace through consensus. This mechanism has been thought of because courts are over-burdened. The said system emanates from the dissatisfaction of many people with the way in which disputes are traditionally resolved resulting in criticism of the Courts. Actually, its emergence is one of the most significant movements, both in terms of judicial reforms as well as conflict management. It has become a global necessity. Its utility is now unquestionable3.

1 Park & Burger, Introduction to Science of Sociology p.735 2Mwenda, K.K. (2003). Principles of Arbitration Law. Florida. Rown Waller Press 3Lynch, J.: ADR and Beyond: A Systems Approach to Conflict Management, Negotiation Journal, Volume XVII 3, July 2001 p. 213

III.

A need for alternative modes of dispute resolution Resort to alternate modes has become necessary because of the phenomenal rise in the

number of court cases on account of population explosion, greater public awareness of rights and the dynamics of the new market economy. A. Statement of object and reasons4 There is a maxim of law that justice delayed is justice denied. The maxim holds good both in civil and criminal cases. In every civilized society, there have been constant efforts to evolve ways and means for speedy dispensation of justice. There is a huge backlog of cases in both subordinate and superior courts of the country. It is, therefore, necessary to find simpler and faster alternates which can supplement the traditional legal system. As litigation is a very lengthy and expensive process there is a worldwide trend to adopt ADR. The methods such as conciliation, arbitration, mediation, and panchayat can be used effectively for settlement of disputes to overcome delays, provide inexpensive justice and reduce the tremendous burden on courts. B. In the light of judicial decisions The sole purpose of the Arbitration Act is to curtail litigations in court and to promote the settlement of disputes amicably through persons in whom both the parties repose their trust. Therefore the course that the courts should generally follow is to encourage the settlement of disputes by this method wherever the parties have themselves agreed to do so5. Role of courts in the scheme of Arbitration Act of 1940 is of supervisory character6. Arbitration is a judicial determination of differences between the parties, a necessary ingredient is that there must be a controversy, presentation of the case from both sides, if necessary, the evidence is brought on record, and application of mind by the arbiter and a reasoned award must follow7. The whole scheme of Arbitration Act of 1940 is to curtail litigation in the regular courts to get disputes settled by avoiding all type of technicalities of procedural law and to provide a domestic forum for speedy disposal of disputes8. 4Report of Standing Committee of Law and Justice: The Alternate Dispute Resolution Bill, 2017 5 1981 SCMR 129 6 PLD 2003 Kar. 180 7 1999 YLR 978 8 PLD 1995 Kar. 286

C. Support from Islamic Injunctions i. Surah Al Nisa-Verse 58: To render back your trust to those to whom they are due; & when ye judge between them, pass judgment with justice. ii. Surah Al Nisa-Verse 35:

If ye fear a breach between them twain, appoint two

arbiters,

one from his family, & other from hers, if they wish

for

peace, Allah will cause their reconciliation.

Indeed, just and expeditious resolution of disputes is consistent with the teachings of Holy Quran, the traditions of Holy Prophet [peace be upon him] and also in accordance with the Objective Resolution and provisions of the Constitution9. IV.

Existing Legal Framework for ADR i.

The Arbitration Act of 1940 is applicable for resolving disputes of civil and commercial nature through the medium of arbitration.

ii.

For the enforcement of foreign arbitral awards, Pakistan has promulgated in 2006 the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Ordinance.

iii.

In order to resolve family disputes of matrimonial nature the concept of an arbitration council exists under the Muslim Family Law Ordinance, 1961 [Reference: Section 7].

iv.

In the Family Courts Act of 1964, this concept was also introduced and the Family Court was obligated to make an attempt to effect a compromise or reconciliation at the pretrial stage [Reference: Section 10]. Moreover, on the conclusion of the trial, the Family Court is again obligated to make another attempt for compromise or reconciliation [Reference: Section 12].

v.

Reference is also to be made to Section 98 r/w Order X Rule 1-A of Code of Civil Procedure [as was amended in 2002].

vi.

In the year 2002, Small Claims and Minor Offences Courts Ordinance has also the provision for attaining the objective, i.e. amicable settlement through Salis by means of conciliation, mediation or arbitration.

vii.

For resolving disputes between labor and the management, provisions exist in the Industrial Relations Ordinance of 2002 such as Shop Stewards who act as a link between the workers and the employer [Reference: Section 23] and also a Joint Works Council [Reference: Section 24]. Resort to these methodologies

9 Reference: State shall ensure inexpensive and expeditious justice- Article 37 of Constitution

for redressal of grievances results in a congenial atmosphere in the industrial and commercial establishments. V.

Alternate Modes of Dispute Resolution

1.Negotiation 2.Mediation 3.Conciliation 4.Arbitration Figure A

5.Non-Formal Modes

a. Negotiation Negotiation is a type of ADR which is generally referred to initially in case of a dispute and it covers all methods of ADR. This type of ADR aims for the parties to settle the dispute between the same by negotiating and deliberating with each other with the attendance of their attorneys if needed, without intervention of any third party. Negotiation is a kind of ADR method that each party tries to obtain a benefit for themselves at the end of the process by persuading the other party to act in the way the former desires. b. Mediation Mediation, a wide applicable form of ADR, is a method in which the mediator provides better communication between the parties of the dispute. The mediator does not guide or direct the parties, or gives an advice or gives a binding decision like an arbitrator or a judge. The mediator only contents with asking directive questions to the parties' better communication with each other. In case an agreement is not reached at the end of mediation process, the information and documents obtained from the deliberations cannot be used as evidence in a possible, future lawsuit. There is a win – win situation in the mediation. The chief advantages of the mediation are i. The agreement which is that of the parties themselves; ii. The dispute is quickly resolved without great stress and expenditure; iii. The relationship between the parties are preserved; and iv. The confidentiality is maintained. c. Conciliation Conciliation is an alternative dispute resolution process whereby the parties to a dispute use a conciliator, who meets with the parties separately in order to resolve their differences. They do this by lowering tensions, improving communications, interpreting

issues, providing technical assistance, exploring potential solutions and bring about a negotiated settlement. d. Arbitration Arbitration, a form of ADR, is a technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons – arbitrators, by whose decision they agree to be bound. It is a resolution technique in which a third party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforceable. e. Jirga & Panchayat Panchayats and Jirgas are kinds of local government system through which social justice and local development issues are regulated and managed. These systems have functioned for centuries in the sub-continent. These are a kind of today's ADR systems. A two-member SC bench10 declared operation of Jirgas as a violation of Pakistan’s international commitments under the UDHR, ICCPR, and CEDAW. Declaring the operation of jirga and panchayats in the country against its global commitment and certain provisions of the constitution, the Supreme Court granted six months’ time to the Khyber Pakhtunkhwa (KP) government for developing an infrastructure to spread uniform system of courts in FATA as well. VI.

Difference between Mediation and Arbitration

Structure of Process

Mediation Arbitration Introduction Joint Session, Claims, Counter

Claims,

Agreement & Causes

Examination of witnesses &

Negotiatory, Collaborative No Procedure

Arguments Adjudicatory, Directive Procedural Rules & Rules of

Neutral third party acting as Role of parties[or

Facilitator Active and Direct

Evidence Adjudicator Active only during evidence

advocates] Level of formality

Informal

Formal

Nature of Process Procedure

10 Constitution Petition No. 24 of 2012 [National Commission on the Status of Women through its Chairperson, etc. versus Government of Pakistan through its Secretary Law & Justice, etc.] & Civil Petition No. 773-P of 2018 [Government of KP through the Secretary Law, Parliamentary Affairs & Human Rights, Peshawar & another versus Ali Azam Afridi Advocate & Others] Pronouncement of Judgement: 16.01.2019

I.

Arbitration Law in Pakistan Arbitration in Pakistan is governed by Arbitration Act of 1940. It consists of basically

following three types of arbitration, Arbitration without court intervention Chapter II [Ss. 3-19] Arbitration where no suit is pending [but Chapter III [S. 20] through court] Arbitration in suits [through court]

Chapter IV [Ss. 21-25]

So, the act provides for the arbitration with the intervention of the court and arbitration without the intervention of the court. The main difference between two pertains to whether or not both parties to a dispute are willing to resort to arbitration. Arbitration without the intervention of court takes place where both parties are willing to resort to arbitration without seeking the court to appoint an arbiter. Arbitration with intervention of court occurs where one party is willing and other is not so as to enable the willing party to show adherence to the pre-agreed arbitration agreement by the unwilling party. Arbitrators: There can be single, two, three or more arbitrators. And if there are even number of arbitrators appointed, then an umpire is to be appointed. Arbitrator may be named either in the arbitration agreement or left to be appointed by a designated authority....