PAPER

LIST OF NOTIFICATIONS REPRODUCED IN THE <!--[if gte mso 9]> PAPER By Ms. Navin Merchant, Advocate, Supreme Court of Pakistan, Karachi. Many of the techniques brought together under the umbrella term "ADR" have deep and separate roots. For example, in many civil laws or Asian judicial systems, the Adjudicator has, by custom or duty, attempted to settle claims by conciliation. Mediation in family, community, commercial, international diplomacy and labour relations disputes all have independent, and sometimes long‑standing, historical or cultural roots. The term "Alternative Dispute Resolution" ("ADR") originated in the U.S.A. in a drive to find alternatives to the traditional legal system. The traditional legal system is felt to be adversarial, costly, unpredictable, rigid, over professionalized, damaging to relationships and limited to narrow remedies compared to realistic problem‑solving. ADR as a term covers the whole range of alternatives to litigation or arbitration which involve third party intervention to assist resolution of a dispute. In some writings, arbitration is also referred to as part of ADR. It was, of course the first well‑developed "alternative' to litigation. The strength of ADR lies not in any formal definition but in its flexibility of practice, where it has helped to introduce new thinking to the choice of techniques available when dispute or potential dispute arises. Undoubtedly, ADR has helped to broaden the criteria by which appropriate methods of dispute resolution can be judged, including the role of the legal system itself. Amongst ADR techniques, mediation has proved to be the most flexible, powerful and user friendly approach. In many countries the Judicial system can no longer cope with its caseload or offer cost‑effective procedures for resolving disputes outside the traditional, formal system. Mediation has established three main streams: * Commercial * Family * Community All require distinct approaches, but the principles of a neutral third person assisting parties to find their solution is fundamental to all three. Mediation is the most commonly used ADR process. Many people now use the terms ADR and mediation interchangeably, although "Alternative Dispute Resolution" encompasses a range of techniques one of which is mediation. Now let us have a look at the following formal and informal ways of resolving disputes: Litigation: Litigation is the most recognized form of dispute resolution throughout the world. It is publicly financed and administered, carried out in a public forum and is bound by mandatory rules about process, evidence and testimony. It is not voluntary‑‑parties have to when required or suffer penalty and the decision is binding although may be subject to appeal. The decision is based upon law and precedent, but the subject to human error and the outcome is not easy to predict and may be perceived as unfair. Attempts have been made and continue to be made, to speed up the litigation process and to reduce the cost but the litigation remains an expensive and time‑consuming way to resolve disputes. In fact the value of many disputes is exceeded by the eventual cost of resolution and the time taken to obtain a decision is often measured in years and not months. Arbitration: Arbitration has been introduced to overcome some of the problems encountered in litigation. Arbitration still empowers a third party to decide the outcome of a dispute, although more likely that the Arbitrator will have subject area expertise which, for some, makes the decision more agreeable. The decision is made according to the relevant law, is binding and is not normally subject to appeal. Like litigation, the process of arbitration is adversarial and mostly formal, but the Proceedings take place in private and the arbitrator if usually selected by the parties. Unfortunately arbitration has become very similar to in both cost and time; more streamlined fast track forms of arbitration have been developed: Like litigation procedure, arbitration style and process may differ across cultures. Negotiation: When the dispute occurs, the first thing that comes to the mind of the disputant is negotiation. The best, cheapest, most economical and most satisfactory way of resolving disputes is by negotiation. Negotiation is an everyday activity for human beings; much of it is not recognized as negotiation at the time and most of it is effective. It is a skill that is built into human nature and yet has only recently been studied, understood and refined. Direct negotiation requires the negotiators to communicate with each other about the dispute and, often about their willingness to compromise. Negotiation is usually possible when the parties can identify and agree on what issues are in dispute. Their interests, goals and needs are not entirely incompatible and they are constrained by time. There axe two recognized core strategies for negotiating: * positional bargaining * principled negotiation Positional bargaining is the traditional strategy in any kind of dispute. The Key characteristics of this strategy are; * each side takes its best and most extreme position on what it demands or offers * "discussions" take place where parties haggle, threaten, bully, cry, or lie in an effort to extract movement or agreement from the other side * concessions are exchanged * Settlement is usually achieved somewhere in the middle of the bargaining range, depending partly on the balance of power between the parties. Principled negotiation; The key characteristics of this strategy are: * negotiating on the basis of principles, not positions * encouraging problem‑solving * using objective standards to support decision making * aiming for a wise outcome reached efficiently Why negotiations fail: * poor negotiating skills of one or both parties or their advisers * unrealistic expectations * unrealistic assessment of interest, or alternatives, or of what the other side can do * desire for revenge * failure to communicate interest or offers * inability of the parties to identify or solve a real problem in their dealings. Alternate Dilute Resolution: Any alternative to the two established and traditional methods of dispute resolution, namely litigation and arbitration is encompassed by the term ADR, even including some processes which involve an imposed decision. However, mediation is being regarded as the core ADR process, the use of other is being where specific circumstances make mediation inappropriate. The need for an alternative to litigation and arbitration is broadly accepted, in particular because of the problem of time and cost but also because any adversarial process leaves wounds, which damage even, destroy relationship. The litigation and arbitration look back to the past and any decision is largely based upon history. In ADR the focus is primarily on the future and on party interests, which are not limited to legal issues. Why ADR works: ADR techniques work because a third party can help to eliminate or to reduce the effect of some main obstacles to successful negotiation. Mediation is the ADR technique, which enables the parties to resume or sometimes to begin negotiations. The very presence of the mediator changes underlying dynamic of the negotiating process. The mediator brings negotiating, problem solving and communication skills to the process, deployed from a position of independence and neutrality, making real progress possible where direct negotiations have stalled. The general definition of mediation is as follows: Mediation is voluntary, non‑binding private dispute resolution process in which a neutral person helps the parties try to reach a negotiated settlement. By now in many countries of the world the mediation has been introduced as a mandatory requirement of law. In Pakistan though an amendment to this effect has been brought, but so far has remained ineffective due to its non‑mandatory nature. Taking the opportunity from this occasion may I make a request to the Honourable Chief Justice that a necessary amendment be made in law to make the mediation mandatory in appropriate cases. May I mention here that I have the opportunity of being a faculty member of the Sindh Judicial Academy and also have the honour of imparting the knowledge of ADR to the Additional District Judges and Senior Civil Judges where the special skill of mediation is being taught. This is an excellent step because no matter how much you read about this particular subject, the beauty lies in the skill which is applied to make the participants arrive at a solution themselves to create a win situation for both the parties. It is my humble submission that the Judges should be equipped with the necessary skill in this subject and therefore ongoing training of the Judges is the need of the time. During my sessions, I have noticed a keen inclination towards mediation by the Judges. We shared different situations where they had occasions to get the parties into compromise. But there was one serious concern. The reason of mentioning this here is that I want to convey this concern to the Honourble Chief Justice of Pakistan. The concern is that if a Judge, with whom the litigation is pending, sees a potential of compromise to the case, can he assume the role of mediator himself and try to resolve the dispute. There is a great possibility of resolving the dispute; however we cannot discount the failure of such a mode of dispute resolution. The danger lies not in his acting as a mediator of the case which is pending in his own Court but it lies in not getting it resolved. Why? Because during the mediation process, the Judge as a mediator gets exposed to the parties' interest, goals, strengths and weaknesses. In case of failure, the information will definitely influence his judgment as an adjudicator of the case. To mitigate this risk it, is my humble submission before the Honourable Chief Justice of Pakistan that if the, Judge feels that there is a possibility of compromise in a case then for the mediation the case should be referred to one of his brother Judges. This would not only create the trust and confidence of the litigants but would guard against any adverse impression such as Judge being partial etc.