Alternative Dispute Resolution

ALTERNATIVE DISPUTE RESOLUTION ALTERNATIVE DISPUTE RESOLUTION By Noor Alam Khan Advocate, Peshawar State is defined as, a politically organized body of people usually occupying a definite territory; especially: one that is sovereign. Another generally accepted definition is that, 'State is a community of people, more or less, numerous in number, having a definite territory and an organized government applying law, to which the great body of inhabitants render habitual obedience. The 'State' emphasizes a self-governing legal and political entity. Political system based on the premise that the government (and not the individual, corporations, or the local community) has the responsibility for the well being of its citizens, by ensuring that a minimum standard of living is within everyone's reach. This commitment is translated into provision of universal and free education, universal medical _______________________ 56 For a review of the impact of climate change on the unprecedented floods in Pakistan in 2010, see Dr. Parvez Hassan Pakistan Floods 2010 and the Environmental Challenges , a paper presented at the 1st International Conference on the Environment and the Role of the Modern State, held at Manaus, Brazil, on 16-19 November 2010. See also Dr. Parvez Hassan and Ahmad Rafay Alam Bad Weather , published in the Newsweek Pakistan March 2011 Issue available at: http://newsweekpakistan.com/features/266 care, insurance against disability, sickness, and unemployment, family allowances for income supplement, and old age pensions. Now activities of the States have extremely enlarged and the living has become more complex. In the modern welfare States individuals look to the State for redressal of all their grievances and they expect to be governed by the State authority with a rule of law. The law of the State is interpreted and applied by the judiciary. In the modern States the increase in contacts between the individuals inter se and inter-dependence has resulted in rapidly growth of disputes. The judicial resources of the States find it hard to manage with the situation in view of the individuals' frequent approach to the courts for the resolution of their disputes and our courts are slow to speedy disposal of the disputes. Consequent delay in the conclusion of disputes, had attained alarming proportion and was one of the major causes towards the delayed disposal of cases by Courts of law which was against that golden principle in the administration of justice i.e. "justice delayed is justice denied -- Justice delayed is justice denied" is a legal maxim meaning that if legal redress is available for a party that has suffered some conflict or injury with the hand of other, but is not forthcoming in a timely fashion, it is effectively the same as having no redress at all. This principle is the basis for the right to a speedy trial and similar rights which are meant to expedite the legal system, because it is unfair for a party to have to sustain the injury/dispute with little hope for resolution. The phrase has become a rallying cry for legal reformers who view courts or governments as acting too slowly in resolving legal issues either because the existing system is too complex or overburdened, or because the issue or party in question lacks political favour. This is because of factors that Judicial systems have become over-burdened and consequently the process of litigation has become frightened, slow, expensive, time consuming and destructive to relationships due to the lose/win scenario towards the end of the litigation. The high image of judiciary and trust reposed in it was its hallmark, but it started waning and put the people to think for reform and alternate remedies for resolution of disputes. This does not mean that the judiciary as an institution lost its efficacy and confidence but with the passage of time it has overburdened. The scientific developments, growth of population, trade, industry and commerce, the migration from rural areas to urban areas, growing regulatory legislation, adhocism, lack of implementation and respect for law, all collectively gave rise to conflicting vested interest impinging on the rights of people who felt aggrieved by Government policies and actions. The wants, aspirations and acquisitions developed conflicts among individuals which multiplied in number and variety. Such situations always create complex conditions and every one looks towards the judiciary for the resolution of disputes. Jurists, scholars and State authorities have determined ways and means for disputes resolution for a long time and ultimately a global consensus is developing to adopt alternative means of disputes resolution. These alternative methods for resolution of disputes are commonly known as ADR', alternative disputes resolution. It means out of court settlement of disputes through compromise such as mediation, conciliation, arbitration, neutral evaluation, expert determination. The term ADR is relatively new to the field of law and social sciences. However, the practice of ADR is as old as the human history itself. In fact, the present day legal system is built upon the universally agreed principles of peace and justice in the societies. The primary object of ADR movement is avoidance of vexation, expense and delay and promotion of the ideal of "access to justice". In certain countries of the world where ADR has been successful to the extent that over 90 per cent of the cases are settled out of court, there is a requirement that the parties to the dispute must indicate the form of ADR which they would like to resort to during the pendency of the trial of the suit. ADR provides advantages which the courts cannot grant. However ADR lacks of publicity and not many people know about it even. Then it is duty of the courts to provide and inform the litigant of the provision of outside the court settlement because this method of resolving the disputes is less formal and its processes are simpler, friendly, less expensive, less time-consuming and maintain relatively better privacy and confidentiality. Alternative Dispute Resolution is of two historic types. First, methods for resolving disputes outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. There are in addition free-standing and or independent methods, such as mediation programs and ombudsman offices within organizations. It follows the following methods/types for the resolving of disputes:-- Negotiation Mediation Conciliation Arbitration Ombudsman Adjudication Negotiation Negotiation defines as "the act or process of conferring or discussing to reach agreement in matters of business or State. It is directly settlement of dispute where participation is purely voluntary, there is direct communicative interaction between the disputants, and there is no third party who facilitates the resolution process or imposes a resolution. There is no compulsion whatsoever, only personal motivation. Negotiation is a means which is not only used to resolve disputes but also used to avoid them. Parties negotiate in innumerable matters regularly. There is no fixed procedure that needs to be followed except an intent to negotiate. Any method of negotiation may be fairly judged by three criteria: it should produce a wise agreement if agreement is possible, it should be efficient and it should improve or at least not damage the relationship between the parties. Mediation Mediation means "the act of mediating; intercession, an attempt to reconcile disputed matters arising between States, especially by the friendly intervention of a neutral party. It is a method of resolving a dispute whereby a third party consults with those involved and recommends a solution. It also means that a process in which a mediator facilitates/communicated between parties to assist them in reaching a voluntary agreement regarding their dispute. This type of resolution is achieved with the help of neutral third-party qualified in providing mediatory services between the parties to dispute. ADR by Mediation is a voluntary and non-binding collaborative process where parties to the suit identify issues, explore alternatives, evaluate options and contrive a consensual resolution. Outcome of successful mediation is an agreement signed by both the parties, endorsed by the mediator and enforceable in the court of law like any other contract. Mediation cannot take place without the participation of both parties to the dispute. It is an informal and non-adversarial process which has the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. With non-binding mediation, decision-making and authority rest entirely with the parties. The mediator acts as a facilitator, guiding the parties in identifying issues, engaging in joint problem-solving, and exploring creative settlement alternatives. Although the process is voluntary and non-binding, it results in a strikingly high settlement rate. Conciliation It is the process of conciliating or bringing to agreement. This method is similar to mediation except that the neutral party actually suggest compromise solutions to the parties involved. This therefore share an extra advantage - the parties might not compromise without the suggested solutions. It is a more scientific process of trauma healing both for the victim as well as the offender. It also takes a serious look at the root causes of the conflict and addresses them. Conciliation literally means to win the support of friendly feelings of someone, removing the anger or disbelieve felt before. This type of method reduce violence and tension but because it assures ending a cycle of violence which would otherwise remain, though under cover, for some time even after the issues have been decided by an appropriate forum. The idea of conciliation emerges from the fact that the parties in a dispute can actually come out as beneficiaries of the situation rather than its victims. Conciliation literally means forgetting the anger and hatred resulting in the dispute and to live with peace and harmony. Arbitration A process in which a disagreement between two or more parties is resolved by impartial individuals, called arbitrators, in order to avoid costly and lengthy litigation. It is the hearing and determination of a dispute by an impartial referee agreed to by both parties. Arbitration is a judicial determination of differences between the parties---Necessary ingredients for an arbitration are that there must be a controversy; presentation of case from both sides; if necessary evidence be brought on record; and application of mind by the arbitrator and a reasoned award must follow. Ombudsman This is where a party faces a problem and reports it to the ombudsman-which is usually the State official and s/he will carry out investigation on the complaints. If a complaint is reasonable and substantiated, the ombudsman will try to solve the problem. This is usually done by reporting to the government to suggest changes. Ombudsman usually a government official who hears and investigates complaints by private citizens against other officials or government agencies. In general, ombudsmen have wide investigative powers, they have some punitive powers also. Office of ombudsman is established to introduce a process of accountability that would be impartial, non-political, inexpensive and expeditious. Ombudsman is a Swedish word means as spokesman of the people. Adjudication Adjudication means "to hear and settle (a case) by judicial procedure. It also means decision making. Adjudication refers to judicial determination of a matter in controversy. To adjudicate means to decide a matter between two or more contesting parties. In the light of this definition of adjudication, judges, arbitrators, members of tribunals and ombudsmen etc. are all adjudicators. The lawyers, Solicitors have been involved in Construction Adjudication since the year 2000 in UK and can provide clients with cost effective legal representation. Adjudication enables clients to secure an enforceable judgment within a matter of weeks and the courts will only decline summary judgment in limited circumstances. Although the successful party within an Adjudication usually recovers the costs of the Adjudicator, he will not, unless the other side consents, be entitled to recover the costs of representation. It is therefore vital that costs remain proportionate to the sums at stake. The proceedings of adjudication are not governed by the statute rather by the terms of the contract. The Holy Quran has also recognized the ADR in the following verses Quran says in Sura-e-Nisaa (Sura No.4 Verse No. 35), "If ye fear 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." In Verse No.114 of this Sura, Allah Almighty has promised great reward for those who effect sulh , conciliation between contesting parties. In Sura Nisaa (Verse No. 128) it has been commanded that, "if a woman fears cruelty and desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves, and such settlement is best...". Verse No.85 of Sura-e-Nisaa commands that, "Whosoever intercedes for a good cause will have the reward thereof, and whoever intercedes for an evil cause will have a share in its burden. And Allah is Ever all-able to do (and also an all-witness to) everything." In Sura-e-Hujurat provides (Sura No. 49 Verse No.10) that, "The Believers are but a single Brotherhood, so make peace and reconciliation between your two contending brothers...". In the same Sura, (Verse No. 9), it has been commanded that, "And if two parties among the Believers fall into a quarrel, make ye peace between them, but if one of them transgresses beyond bounds against the other, then fight ye (all) against the one that transgresses until it complies with the Command of Allah; but if it complies, then make peace between them with justice, and be fair, for Allah loves those who are fair (and just)." Being an Islamic State, ADR is also very applicable in Pakistan in form of following laws summarized as under:-- 1. Section 89-A of the Civil Procedure Code, 1908 read with Order X, Rule 1-A 2. The Small Claims and Minor Offences Courts Ordinance, 2002 3. Sections 102-106 of the Local Government Ordinance, 2001 4. Sections 10 and 12 of the Family Courts Act, 1964 5. Chapter XXII of the Code of Criminal Procedure, 1898 (summary trial provisions) 6. The Arbitration Act, 1940 7. The Sales Tax Act 1990 (section 47-A) 8. The Federal Excise Act, 2005 (section 38) 9. Customs Act 1969, (section 195-C) 10. Income Tax Ordinance, 2001 (section 134-A) 11. Arbitration (International Investment Disputes) Act, 2011 12. Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 13. Khyber Pakhtunkhwa Shariah Nizam-e-Adl Regulation, 2009 (section 13) 14. Frontier Crimes Regulation, 1901 (sections 8 to 12) 15. Articles 153-154 of the Constitution of Pakistan, 1973 (Council of Common Interest) 16. Article 156 of the Constitution of Pakistan, 1973 (National Economic Council) 17. Article 160 of the Constitution of Pakistan, 1973 (National Finance Commission) 18. Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when Federal or Provincial governments are at dispute with one another). 19. Ombudsman Laws (as enforced by Federal and Provincial Governments) ADR provides an alternative to litigant by avoiding lengthy and costly proceedings. These are the best methods for resolving of disputes. So efforts should be made by the Bench and the Bar for referring the matter to ADR as provided in above laws.