The Demise Of Commercial Mediation In Pakistan

The Demise Of Commercial Mediation In Pakistan

Mediation was introduced in Pakistan as an alternative dispute resolution mechanism for the swift resolution of commercial disputes with the hope that it would better the business climate. However, nearly a decade down the road the picture is quite clear that voluntary mediation in commercial disputes has failed in Pakistan.

The International Finance Corporation financially assisted the setting up of at least two mediation centres in Pakistan. One was established in the metropolitan city of Karachi while the other was established in Lahore. However the numbers have not been very impressive throughout the years. None of the centres in Pakistan will be able to claim the resolution of a satisfactory number of commercial disputes. The numbers are next to negligible.

It is quite unfortunate that while the world at large is transitioning towards mediation, Pakistan still lags years behind. The support for mediation from the legislature is thin, the body which is primarily focused on all sorts of issues except those that shall benefit the country. With the absence of legislation the judiciary feels that there is not much they can do either. However this is not true because in a lot of countries there is an absence of legislation but the robust attitude of the judiciary has compelled litigants to try to resolve their disputes, in good faith, through mediation.

The question nevertheless is whether mediation centres should shut down or continue their efforts in making mediation mandatory in Pakistan. A mediation centre is not and should not be required to make efforts regarding policy making. Advocacy should have been the primary aim of the donors who helped establish such centres. This aspect was largely neglected by the think tanks who first initiated the project in Pakistan.

A different but very relevant problem also arises that due to the negligible number of case referrals, the skills acquired by the mediators during their training are getting rusty. No mediator can become an expert mediator just by attending mediation training programmes which last anywhere between 45 to 200 hours. There is no such evidence that if a person has passed an accreditation then he or she is an expert mediator from that point onwards. It is only practice and experience that makes a mediator more experienced and efficient in the mediation procedure. However the lack of cases coming in for mediation raises questions on the ability and skills of mediators in Pakistan.

Keeping in mind the lack of will of the legislature, the withering skills of mediators and reluctance on behalf of the legal fraternity to insist on mediation as a tool prior to litigation, what is the future of commercial mediation in Pakistan? If we assume that legislation gets enacted for mandatory mediation, does Pakistan have a sufficient number of effective mediators? Or will we be dealing with the same age-old trained non-practising mediators? Maybe this is why it seems that donor agencies and advocacy groups are no longer interested in working for the implementation of mediation in Pakistan.

Therefore in my view, unless there is some serious legislation (not the one like the ADR Bill 2016 which was recently tabled in the National Assembly), or the judiciary becomes proactive in enforcing mediation as the preliminary path for dispute resolution, mediation shall not become a reality in Pakistan.

 

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

Ebrahim Saifuddin

Ebrahim Saifuddin is the Chief Operating Officer of National Centre for Dispute Resolution (formerly Karachi Centre for Dispute Resolution) and the Principal Trainer and mediator at the Centre. He drafted the Mediation Bill 2014 which has been approved by the Federal Cabinet.



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