Why Must Mediation Be Promoted In Pakistan

Why Must Mediation Be Promoted In Pakistan

The three most essential elements which need to be available to any society, community or nation are: Access to Education, Access to Health and Access to Justice.

If there is an absence of any of these services, the nation will retrogress instead of progress. While most are aware of the dire need to have access to education and health, few are aware of the importance of access to justice; it is but one of the fundamental pillars of Rule of Law. No access to justice means infringing a peoples’ basic human right – a right recognised by the entire civilized world. For a moment put yourself in the shoes of a woman who belongs from the lower stratification of our society who has been wronged. Court procedures will be tedious and require almost a decade and a half for any decision, legal fees may be burdening and the psychological stress would be overwhelming. Even if she received justice after a decade, can that really be termed, “Justice served”? Can the psychological stress ever be so compensated? Such questions we need to ask ourselves before we turn a blind eye towards the need to provide easy access to justice to the common man.

The question thus arises, how can we provide easy access to justice? The most common reply will be to provide free legal services, i.e. lawyers fighting legal battles free of cost. Moreover, one may argue, there are a number of non-governmental organisations that are offering free legal services to the needy people. Without a doubt, the civil society of Pakistan feels deeply for the bleeding motherland and is doing a remarkable job of offering free legal services. However, even if free legal services are provided, how does that resolve the time it requires in litigation for a case to be decided; then again, what about the routes of appeal? The path to an eventual final judgment in litigation and its execution is tedious, excruciating and cumbersome. Once again ask yourself, is this “Justice served”?

Alternative dispute resolution (ADR) is the need of the hour. There are many different mechanisms under the umbrella of ADR, namely, mediation, conciliation, neutral evaluation, arbitration, mini trial, MedArb etc. From all of these mechanisms, mediation is the most favoured and effective procedure to resolve disputes. Mediation is an interest-based process and not rights-based like litigation. In mediation an impartial third party facilitates negotiations between the disputants. The impartial party will assist the disputants in finding a win-win situation by addressing the core interests of the parties. While litigation is adversarial, mediation addresses the needs of the disputants and the goal is neither to point fingers nor declare one disputant to be right and another to be wrong. It assists people in moving away from blame games and channel their energy towards finding a solution.

The benefits of mediation become evident; many may speak volumes on its cost-effective, time-efficient nature, and how it reduces the burden on the court system and albeit all such is true, I wish to point towards something of far greater importance – promotion of communal harmony and religious tolerance by repairing and building relationships. It is known that in Pakistan there are certain criminal offences which are compoundable i.e. where compromise is permitted during or after trial of the case. One such offence where compromise is permissible is “uttering any word or making any sound in hearing or making any gesture or placing any object in sight of any person with the intention to wound his religious feelings”. If someone commits this offence and at this point, mediation is an option for the parties, this dispute shall not only be resolved but also create tolerance in both parties towards each other’s personal beliefs. On the flipside, if mediation is not an available option, the dispute will end up in court and the ramifications of the decision (imprisonment of one year or fine or both) shall reverberate for many years to come.

Mediation not only develops an understanding between the disputants with regards to the other person’s needs, it also is a platform which is completely confidential. Often families prefer to come for mediation as they know their privacy shall not be compromised. While court records are accessible by the public, NCDR ensures that case details including names of disputants are not disclosed publicly. Moreover, a dispute is generally resolved within a few mediation sessions as opposed to years spent in litigation.

A dispute must be resolved in the shortest time possible and at the earliest stages. If your dispute will linger on for years, it will add on to your stress level, aggression, animosity, acrimony and your general attitude towards people will change. While not only the mental health of an individual is at stake, people can also opt for frivolous litigation against the other party and even turn towards crime. In fact we have often received cases where the main dispute was just a small business conflict but it spiralled into such a serious affair that parties resorted to lodging criminal FIRs against each other. When put through mediation, many a times the businesses have continued on till even today and if the business is dissolved, the disputants still maintain a healthy relationship with each other – no bellicosity, hostility or bitterness lives in the hearts of the disputants.

What type of Pakistan do we envision for our generations to come? Should the people of Pakistan not have the option to go for mediation before spending years in litigation? It is our collective duty as citizens of this nation to promote this concept among the masses.

Ebrahim Saifuddin

Author: 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.