Need For Alternative Dispute Resolution

Need For Alternative Dispute Resolution

We all know life is full of conflicts at all levels and it is quite natural, but how we respond to these conflicts determines our survival or extinction. Is life really about all or nothing? Any court in Pakistan on any working day is a perfect example of how the antiquated overburdened system struggles to thrive and live up to its full potential. The honorable justice comes into the crowded courtroom, everyone rises and the lucky ones get to have a seat if any are available, while the rest have to either stand in a corner or are escorted out.  With over fifty to sixty cases per day on the docket, justice is served in a very impromptu manner and the chances of number forty being heard on the fixed date are very slim. So, there goes the system burdened with millions of cases pending at all levels of judiciary, coming to halt to provide remedy in a timely manner to those who are seeking justice. Let’s set aside the relief for the petitioner for a moment, could there be relief for the system which is crying out for some form of remedy to keep itself viable?

Considering that there are over three million pending cases in the courts of Pakistan, alternative dispute resolution (ADR) is the remedy to kick start the clogged system to provide necessary relief for not only frustrated petitioners, but also for the judicial system of Pakistan.  ADR refers to any means of settling disputes outside the courtroom and typically involves early neutral evaluation, negotiation, conciliation, and mediation & arbitration. This is the perfect medicine for a chronically ill system on which one hundred and eighty-three millions souls rely on for the protection of their rights.

Why not change the overall perception of the justice for the nation which is chronically anxious to get out of its current quagmire? The system needs to give the people a new perspective of life in which conflicts are attended to in a non-adversarial manner instead of the traditional fighting of the “BLACK COATS”. Why have the representatives of two adversarial parties trying to intimidate the other with their oratory skills or trying to use words to heighten or lessen the “FACTS” which are life circumstances to the clients they represent?

Alternative Dispute Resolution would enable people to talk to each other with the assistance of an arbitrator, mediator or a neutral party to see through their disputes. A professional arbitrator listens to both sides of the story at lengths without any time constraints unlike the case being tried in a traditional courtroom setting and explains the existing laws & their application to the facts at hand. In the courtroom setting where over ninety percent of participants do not speak English, having that language as lingua Franca makes the whole proceeding foreign. Foreign nature of these proceedings in many cases leave the petitioner at the mercy of “Mr./MS/Mrs. KNOW ALL advocate” who takes unjust advantage of these innocent justice seekers.  How can you seek preservation of your rights when you do not even know how those rights are treated by the laws of the land? After evaluating the positions of both sides, an arbitrator issues his findings in the form of a decree or award. What a relief!!! Mediation also provides another great tool for the parties to talk to each other and see their positions with the help of a mediator. The mediator, through discussions, can make parties realize the strengths and weaknesses of respective positions. He can assist the parties to find a mutually acceptable solution without issuing any decree or award in his capacity as a mediator. In other words, through the careful assistance of a mediator, parties, through dialogue, can come to their own mutually agreed resolution.

How about going even a step further like the state of New Jersey in the United States where the New Jersey judiciary’s Complimentary Dispute Resolution (CDR) programs are a benchmark at the national level.  CDR programs are available to help parties resolve disputes in a wide variety of actions, from child custody, visitation, and matrimonial disputes to claims involving personal injuries, automobile accidents, small-claims matters and landlord-tenant disagreements. CDR is also available in the municipal courts to help resolve neighborhood disputes and other matters the court deems appropriate for mediation.

Just imagine the wide variety of cases as mentioned above taken out of our clogged legal system and referred to some form of Alternative Dispute Resolution mechanism which would be a breath of fresh air. Making ADR a mandatory first step at the initial stages of any dispute would not only free up the system for more complicated matters, but also it would be breath of fresh air for already in arms parties to start a dialogue to get to a mutually agreed conclusion in a speedy manner.

A speedy and amicable resolution to the legal matters is just the tip of the iceberg when it comes to the overall impact of Alternative Dispute Resolution mechanism. ADR is not only beneficial due to its apparent impact on judicial system but it is also critical due to its overall perception of a particular society to the world at large. In today’s global economy investors are looking for emerging sectors/economies around the globe in which to invest and they make their investment after analyzing existing structural components of the system. Existing laws in general and corporate laws in particular play a huge role in the minds of investors before they make their decision. Legal protection for the business and having a mechanism of dealing with the business disputes plays critical role in decision-making process as well. In having a speedy and effective mechanism in place to deal with the transactional disputes can provide a tremendous confidence boost to the investors to make their investments.

The uncertain and ailing state of the Pakistani economy can definitely use all the help it can get to attract not only local, but also foreign investment for the good of Pakistan. Legislating and implementing ADR mechanisms would send a clear message to the world at large that we are open for business. How can the government of Pakistan reasonably expect foreign investments to come to Pakistan when their own investors are taking their knowledge and investments abroad because of uncertainty and lack of protection for their investment. An impotent legal system renders the entire growth prospects dead. Contract disputes take years to go through within the existing legal framework and multinational companies/investors shy away from the systems where investments and protection of their legal rights are at best a stroke of luck. Having an Alternative Dispute Resolution mechanism would be morale booster for such shaky prospects.

Arbitration and mediation are the tools which are precisely needed at this point in our legal system not only for legal but also from a social point of view. The disputes can be dealt with in a non-adversarial, timely manner and at the fraction of cost. The decision from these proceedings would be, for the most part, appeal proof since those decisions would be the production of bipartisan dialogue. ADR can bring the warring factions to the negotiation table and thus minimizing causalities of an overworked, antiquated and stalled legal system. It is not only in the interest of the petitioners and judges, but it would also open more opportunities of learning and earnings for the respectable fraternity of lawyers in Pakistan. It time for our respected bar associations and legislatures to look into this matter and pave the way for a badly needed and long overdue sustainable reform for legal profession. We all know that the system which does not reform itself to conform to the needs of the society becomes irrelevant. Pakistan cannot afford to have an irrelevant judiciary.

 

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.

Dr Ali Bashir

The author is a practicing lawyer currently working with NAFEER A MALIK law firm in Lahore. He is a freelance writer and has been published in many journals across USA. He has received Juris Doctor JD from Western Michigan University and finished his LLM from George Washington University, USA.



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