Alternative dispute resolution: Why berate when you can mediate

KCDR offers disputing parties a better way to resolve conflict rather than fighting in court .

KARACHI: Conflicts may be resolved in a matter of months through mediation rather than the years it takes to settle them in court. Keeping this in mind, the Karachi Centre for Dispute Resolution granted certification to 18 muftis of the Jamitur Rasheed after they passed mediation training. The muftis will now be able to act as mediators and effectively help disputing parties resolve their conflicts in a more amicable way.

In Western countries, the idea of resolving conflicts through mediation has caught on quite successfully. In Pakistan, however, where hundreds of thousands of cases of civil disputes languish in court rooms for years on end, the initiative has yet to receive a significant response. This is evident from the bitter fact that the Karachi Centre for Dispute Resolution (KCDR) has succeeded in deciding only one such case in 2013.

"This is very unfortunate, but it is the truth," said Justice Saeeduz Zaman Siddiqui. "The Sindh High Court (SHC) has specifically given instructions to the subordinate courts to refer at least one case a month. Due to the negative attitude of the lawyers, however, the courts did not refer many cases last year."

According to statistics, a total of 24 cases were referred to KCDR by the four districts - East, Central, South and West - while district Malir did not bother to refer a single case. Parties in 17 cases refused to contest their issues. Four others went unsuccessful while two are still pending.

According to Section 89A of the civil procedure code, 2002, an ongoing case may be referred to the KCDR if both parties agree to the alternative dispute resolution method. If the mediation process falls through, however, the case is ultimately referred back to the courts. "We have suggested a change in the law of mediation through a bill in 2013, according to which the court can order the parties to go for mediation without asking them," said Siddiqui.

Opposing factors

The idea of introducing alternative means to dispense speedy justice by promoting amicable 'out of court' dispute resolution has, however, been made redundant by vested interests.

Rising consciousness about alternative dispute resolution methods raised many eyebrows, especially among the lawyers' community. Some lawyers had even expelled the KCDR's staff from the district courts a few years ago.

"Litigation culture is such that the cases often take a decade to resolve," said Justice Siddiqui. "Lawyers believe they will lose their regular income if in-house-mediation centres were to be established at courts."

It is a misconception that if the backlog is cleared, lawyers will lose their income, he reasoned. Siddiqui went on to explain that lawyers could earn as much as they make in years in just a couple of weeks by becoming mediators as 60 per cent fee in each case goes to mediators. "In UK, solicitors have become mediators and they earn a lot more in lesser time."

On the other hand, barrister Salahuddin Ahmed, the president of the Karachi Bar Association, was of the opinion that the concept of mediation had been successful in USA, UK and other countries because of the higher costs of litigation.

"I do not think the idea of mediation has been examined in depth. Besides, one has to give up something to reach a compromise and that does not happen when a party wins the case in court. In order to give up, litigants need incentives that call for a change in the court system and basic procedures." Ahmed believed that procedures needed to be changed rather than going for alternative resolution as it was not the most viable solution.

Published in The Express Tribune, March 12^th, 2014.