Call For Developing Skills In ADR Techniques
Borrowing from the quote of The Planet, ‘no serious accomplishment can be achieved unless a pattern is broken’, be it the pattern of living in our comfort zone or doing things in a particular way, this paper underscores the need to break our existing pattern of handling court cases. At the moment, majority of cases are being settled through the long drawn adversarial/ confrontational process of litigation – this needs to be replaced with friendly and non-confrontational mechanism of ADR (alternative dispute resolution), which in turn requires the development of skills in various methods of ADR.
ADR stands for Alternative Dispute Resolution which means settlement of disputes outside of court room through any means, with the consent of parties in a non-confrontational way. Resolution of disputes through ADR can take any form including negotiation, mediation, conciliation, arbitration and early neutral evaluation. In most of these techniques, lawyers and judges assist the parties in reaching a mutually acceptable settlement through a process of bargaining and persuasion while the decision is made by the parties themselves or the persons nominated by them. Accordingly, ADR experts are required to have skills in agenda setting, record keeping, moving between the parties as go between when they are not meeting face to face and earning their trust to make them identify their essential interests and priorities.
As of late, a number of provisions have been added in the Code of Civil Procedure (CPC) 1908 empowering the courts to settle the disputes amicably in a non-confrontational and informal way. These are:
- section 89-A CPC
- Order 10 Rule 1-A CPC
- Order 9-A CPC and
- Order 12 Rule IV-A.
Furthermore, some amendments have been made in special laws requiring the courts to persuade parties to settle their disputes through negotiation, conciliation, mediation and arbitration. Thus, ADR provisions can now be seen in:
- Family Courts Act 1964
- Punjab Consumer Protection Act 2005
- Income Tax Ordinance 2001
- Sales Tax Act 1990
- Customs Act 1969
- Small Claims and Minor Offences Courts Ordinance 2001 and
- Banking Companies Ordinance 1962.
Reading together the ADR provisions of CPC and those of special laws, it transpires that there are certain kinds of disputes in relation to which ADR is deemed to be more befitting mode of settling disputes as distinct from litigation. These include disputes concerning:
- Trade & Commerce
- Consumer Protection
- Child Maintenance & Custody Disputes
- Family disputes
- Intellectual Property Rights
- Taxation and
- Customs liability issues.
When we talk of ADR as a mode of settling disputes, we mean a number of things; firstly, the desire of the parties to settle their disputes in a friendly and congenial atmosphere as opposed to confrontational and adversarial setting of the court rooms. Secondly, we assume that the parties are willing to enter into dialogue to reach a mutually satisfactory arrangement. Thirdly, the parties wish to arrive at a win-win situation giving something to both sides. Needless to say, when decision making is done by the parties themselves, the solution is to be based on mutual give and take. Fourthly, in ADR proceedings, it is assumed that the parties wish to continue their commercial relationship notwithstanding their existing differences, and finally, the parties wish to keep the proceedings confidential.
The 20th century ADR mechanism was introduced in Pakistan long after the system had taken roots in the west as an effective alternative to court adjudication which was thought to be cumbersome, tedious, formal and adversarial. ADR is now a chief mode of resolving minor disputes in advanced jurisdictions and is believed to be a mechanism aimed at reducing the burden on the courts, improving business climate and providing the public with cost effective, time efficient and confidential alternative to litigation.
It goes without saying that courts in Pakistan are over-burdened with work because of which their performance is being affected and one of the solutions is to adopt ADR, at least to the extent of the matters which are amenable to the same.
Having laws on a particular subject is of no use if tools for enforcing and applying those laws are foreign to the stake-holders. For instance, you may be having a deep understanding of labor laws, but if you are stranger to the mechanism of collective bargaining, you would never be able to facilitate a bargain between laborers and the management. All you could do is advise your client to institute legal proceedings which may not be an ideal solution in the given situation.
Although the above-referred provisions of CPC state clearly under what circumstances ADR may be applied, none of these give any idea as to the meaning of ADR. The burden of explaining the philosophy of ADR falls upon the shoulders of education providers. For instance S. 89-A CPC states that “the court may, having regard to facts and circumstances of a case, taking into account the objective of expeditious disposal, adopt with the consent of parties ADR including mediation, conciliation and negotiation”. By teaching ADR at an elementary stage of legal education, the budding lawyers and judges can be made conversant with its meaning and philosophy.
Currently, Pakistan has a number of industry specific and general laws advocating the application of ADR but it does not have experts in sufficient numbers to carry out this task. Lawyers and judges are more familiar with the adversarial and confrontational mode of litigation, having little or no understanding of the agreed settlement reached through a collective decision making process. This process requires skills in negotiation, mediation and conciliation to convince the parties to focus on protecting their essential interest rather than legal rights. To impart these skills, it is imperative to introduce ADR at an elementary level of legal education.
Another compelling reason for developing skills in ADR is the new tendency of the courts to resort to case management techniques at pre-trial stage. This technique requires a judge to hold meeting with the parties after filing of written statement to maximize disposal before the start of specific trial dates. As per this technique, the judge will sit with the parties and their counsels to discuss a number of matters including narrowing down of issues, possibilities of compromise, administering discoveries/ interrogatories, scheduling and time-tabling of events and dealing with interlocutory applications. This scheme is now available under several provisions of CPC, in particular Order 9-A, Order 11 and Order 10 rule I-A CPC. All these proceedings require the lawyers and judges to have skills in negotiation and bargaining in order to help parties reach a mutually agreeable settlement on as many issues as possible. The purpose of the proceeding is twofold: to settle the disputes on the basis of documentary evidence at the earliest stage and to minimize belated complications of suits. To put into practice the important innovation of Pre-Trial Case Management, it is necessary that judges and lawyers must have expertise in the art of negotiation and bargaining.
In the end, it can be concluded that delay in disposal of cases can only be reduced by cutting down the number of cases pending in each court. One of the most effective techniques to cater to this is to enable the judges to concentrate on complex cases and to leave the less complex cases for agreed settlement. To achieve this objective it is vital to develop the skills in agreed settlement.
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 he might be associated.