By: Kamran Khamiso Khowaja
[The Writer is a Law Student, Freelance Columnist and Journalist with special interest in Socio- Political Issues- Based in Village Hussain Abad District Sujawal Sindh]
Man is a Social Animal who feels comfortable living in a society rather than living in an isolated milieu. But living in a society is not always comfortable; men who live in a society intentionally or unintentionally countenance disputes and those disputes badly joggle their appeasing life. Whenever a dispute arises the parties to the dispute normally prefer to knock the door of the court for resolution of that dispute.
The Dispute resolves there also but it takes an inordinate period of time in getting resolved and during the course of resolution immeasurable money is disbursed by both the parties such as Lawyer’s fees, court fees and convenience charges.
There is another method of resolving disputes called Alternative Dispute Resolution (ADR) which is frequently practiced in Western countries mainly the U.K, USA, Canada, and France etc. It has worked effectively in these countries and has played a crucial role in the progress of western Society. Permanent Court of Arbitration is an institute which plays a pivotal role in pacific settlement of dispute among the countries of the world
Alternative Dispute Resolution which is comparatively a new term for our society assists in resolving even decades old disputes outside the court. ADR is a process through which a neutral- third person undertakes the responsibility to resolve the dispute between two parties by applying the methods of Conciliation, Mediation, Negotiation and Arbitration.
Mediation: Through this technique the parties at the dispute are set free to come to o mutual consensus through dialogue without imposing any particular solution. The Mediator or Arbitrator who conducts the process of mediation helps parties come across different solutions and mutual interest. Beside that the mediator also shoulders many responsibilities such as; exploring the concealed facts related to the dispute, he maintains the decorum of mutual dialogue between the two parties; he shares neutral views so parties could be diverted towards the path of reconciliation. Mediation is followed by negotiations
Negotiations: By this tactic the actual point of dispute is discussed among the parties while here during the discussion the Arbitrator keeps a close eye over both the parties so as to avoid any further rift between the two. After going through the stage of negotiations most of the parties become ready to go for reconciliation after giving away their minor interests that obstructs the way of peaceful settlement of dispute
Reconciliation: At the end of the day the mediator with all his expertise and efforts manages to reconcile the parties at dispute without imposing any harsh sanction or verdict over the parties.
Usually Contractual Disputes, Matrimonial disputes and disputes pertaining to property fall within the domain of ADR. A layman must not get carried away by the fallacy that traditional “JIRGA” is also a kind of ADR. JIRGAS are no way near to this methodology as JIRGA is in itself an imprecation for our society.
Since a decade exemplary work has been done to promote ADR in Pakistan which is quite animating.Few communities apply this method to resolve inter-community disputes as well in Pakistan. ADR was introduced to Pakistan by way of Arbitration Act 1940. A year ago Sindh Assembly amended Code of Civil Procedure (CPC 1908) to insert clause relating to Alternative Dispute Resolution. Section 89 (A) Order X of 2002 of Civil Procedure Code empowers the court to apply the method of ADR. Around 61 Mediators were trained in Punjab with the intention to make the process of justice as speedy as possible.
Women in Pakistan are definitely going to get benefit from it if it flourished as expected. According to the provisions of Family Ordinance 1961 an Arbitration council shall be formed which will have the authority to resolve the matrimonial disputes but lack awareness restrain women from acquiring this facility provided by law.
Despite all these relentless efforts for its advancement why ADR has not sprouted here in the subcontinent as it has done in the westren half of the world this is the question that emerges in the mind of a jurist as well as a layman. People of subcontinent possess the mentality of dominating and defeating the opponent rather than subscribing to the option of Mediation and Reconciliation. There are countless examples in the history of the Subcontinent to corroborate this theory.
Islam views Mediation as the most suitable method of resolving dispute and the one who plays the role of Mediator will be rewarded. Allah has expressed the way of reconciliation between the two parties in Surah [Al-Nisa 4:35] if ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things.
The Judicial system of the country that is struggling to deal with around 1.10 million cases are lingering in different courts of the country and prevalence of ADR will breathe life in it. Justice Mansoor Ali Shah while inaugurating the first ADR centre in Lahore said that it will be a game changer for the country,s grappling judicial system this new era will rejig this system.
Jurists, politicians, members of civil society and every right thinking member of the society should play their part in fostering this method of dispute resolution so dispensation of Justice could be made easy in this country