Challenging Misconceptions About ADR

Challenging Misconceptions About ADR

Alternative dispute resolution (ADR) mechanisms are often touted as alternatives to the formalistic processes of the court. While many would believe this to be godsend considering the overly pedantic formal court procedures, others question the advantages of having an ‘informal’ method to solve disputes. These are expected doubts as informality can be the gateway to unenforceable decisions, lack of protection from bias, and perpetuation of inherent power imbalances because the parties are unable to establish legal rights.

What needs to be developed in the ADR discourse to challenge these doubts is an understanding that ADR mechanisms are not alternatives to the judicial system in a country, instead, they supplement judicial processes in several ways. Another misunderstanding that needs to be challenged, especially in Pakistan, is that ADR mechanisms in the mainstream discourse are different from the traditional dispute resolution mechanisms employed in Pakistan e.g. jirgas and panchayats. Traditional mechanisms rely on a council-based decision-making authority which can perpetrate inherent discriminatory practices. Modern ADR mechanisms, like arbitration, rely more on an arbitrator’s ability to reach a lawful situation which is appealing to both sides.

Modern ADR mechanisms are designed to supplement the judicial process in some of the following ways:

1. Reducing the backlog of cases in a judicial system

An immense load of cases increasingly burdens Pakistani courts. Formality hurdles, court strikes and the absence of parties make speedy resolution of the case nearly impossible. In some cases, delays are so extreme that they effectively deny justice, particularly to disadvantaged groups who may not be able to “grease the wheels” of the justice system.[1] Many parties are unable to afford legal representation and are thus unable to navigate the judicial system effectively. Illiterate sections of the society are also discouraged by the formal language used in courts.

ADR mechanisms can significantly reduce dispute resolution delay and indirectly reduce court backlog by redirecting cases that would otherwise go to courts. Programs employing the use of ADR can also be designed to deal with the pre-entry of cases into the court system to ensure parties are on the same page with regards to their cases. This can accelerate the resolution of cases when they enter courts.

Furthermore, ADR systems can address local grievances more effectively as compared to courts. As the emphasis is on reconciliation and working together, the adversarial dynamic of a winner and a loser usually present in a court system is avoided. This has a positive impact on the continuing relationship of the disputing parties as well as general community.

2. Increasing access to justice for the vulnerable/minority

Many communities in Pakistan are disenfranchised from the judicial system either due to general issues of literacy and cost or by the inherent power imbalances against women, minorities, and geographically-dispersed populations, etc. Formal judicial systems may perpetrate culturally-situated discriminatory behavior which undermines fundamental human rights.

Establishing and mainstreaming ADR systems in Pakistan will reform this unfortunate reality. ADR’s informality is appealing and important for increasing access to dispute resolution for parts of the population which may be intimidated by or unable to participate in more formal systems. Local and informal ADR programs can have a wider geographical reach than Pakistan’s judicial systems, reaching geographically dispersed populations such as those in Balochistan or Skardu.

One of the cautions against traditional dispute resolution mechanisms is that they often resort to cruel customary practices that victimize women. Most recently in Multan, members of a panchayat were accused of handing down and executing a ‘revenge-rape’ decision against a 16-year-old girl whose brother had raped another girl.[2]

Modern ADR mechanisms are strictly regulated against such atrocities. Criminal matters are not appropriate for ADR systems in the first place. Moreover, all decisions taken in an ADR system must be lawful. In Pakistan, the ADR Bill which awaits the Senate’s approval has provisioned many reforms aimed at regulating and developing modern and traditional ADR systems. While the Bill recognizes traditional ADR systems as valid, it also limits their ambit to civil cases only. Modern ADR mechanisms are also encouraged through the Bill. The Bill also sets up a regulatory system whereby ADR programs will be monitored and quality-assured by the presence of trained senior lawyers/judges as arbitrators.

3. Timely and uncostly way of resolving disputes

High costs, long delays and limited access undermine the satisfaction with existing judicial processes. High costs in the courts are driven by formal procedures or the requirement of legal representation.

ADR’s informality – in that it doesn’t require lengthy procedures or formal legal representation and reduces the delay and the cost of dispute resolution – makes it increasingly accessible to parties who cannot afford to pay high costs or travel great distances to access courts.

What can be gleaned from this discussion is that informality of ADR has two elements. On one hand, ADR’s informality makes speedy dispute resolution more accessible and affordable to people. On the other hand, there are concerns that this informality may undermine the rule of law; this, however, is offset by the fact that in many parts of the world, including Pakistan, ADR programs are regulated. Arbitrators and mediators are specifically trained to handle cases. In many commercial/business arbitration cases, there is even a right to appeal to a court from an arbitrator’s decision. In Pakistan, the advent of the ADR Bill is also a step towards a wholly regulated framework of the ADR mechanism.

ADR is manifestly advantageous and there is an overwhelming need for it considering the concerns lobbied towards Pakistan’s current judicial system. This article has hopefully addressed the misconceptions that the legal fraternity may have regarding the alternatives to traditional court processes. Furthermore, it is crucial to engage not only lawyers and judges but also the local community in the process of ADR as the success of ADR mechanisms in Pakistan ultimately depends on the use made of it by local communities.

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References:

[1] USAID, ‘Alternative Dispute Resolution Practitioners Guide’.
[2] Imran Gabol, ‘Police arrest 20 Panchayat members who ordered ‘revenge rape’ in Multan’ (26 July 2017) Dawn News. Available at https://www.dawn.com/news/1347764. accessed 27/7/2017.

 

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

Haniya Hasan

The author is a law graduate currently interning at the International Committee of the Red Cross.



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