P L D 2012 Sindh 388 (PLP)

MUNIB AKHTAR, J.

Mr. Noor Khan, Advocate appears on behalf of Karachi Centre for Dispute Resolution and places on record the comments/reply of the Centre pursuant to the order dated 5-.4-2012. After having seen this report, I asked Mr. Noor Khan to provide copies of the comments to learned counsel appearing for the parties. However, learned counsel for the plaintiff, who has filed C.M.A. No.10754 of 2008 expressly stated that he wish to argue this CMA without having the benefit of seeing the comments that have been filed by Mr. Noor Khan Advocate. Learned counsel for the contesting defendant also wished to proceed on the same basis. Accordingly this application was heard without learned counsel, on their own expressly stated choice and decision, having sight on the comments filed by Mr. Noor Khan. Learned counsel for the plaintiff who, as noted above, has filed the CMA under consideration, drew attention to the order dated 22-11-2007 whereby the matter was referred to mediation at the Centre. Learned counsel then , referred to various documents and material . on the record, and his case, in sum and substance, was that the mediation exercise carried out at the Centre went beyond the mandate of the order of the Court just referred to and that in such circumstances the mediation exercise should not have been carried out. After having heard learned counsel for the plaintiff, it appears to me that the submission that has been made by him is without substance. The scope and object of a mediation exercise is substantively different from dispute resolution either by a court of law or by or before an arbitrator. The purpose of alternate dispute resolution by way of mediation is to bring the parties together at a neutral forum to which they have agreed, and to make an attempt to resolve the pending issues or disputes between them as a result of a mediation exercise to be carried out under the guidance and with the assistance of a neutral mediator. It is entirely incorrect to suggest or to believe that a mediation exercise is limited by any formal requirement such a$, for instance, referred to in the present case . by learned counsel for the plaintiff namely the order dated 22-11-2007. In my view, any such. fetters if imposed on the mediation exercise would in fact be against the spirit of such an exercise and may well reduce it to futility by making it subject to those very formalities the avoidance of which is one of the primary purposes and goals of alternate dispute resolution by way of mediation. I also note that in fact the scope of application presently under consideration is rather limited and the relief as sought is only to the extent that either the Centre should file its report with reference to the order dated 22-11-2007 (referred to above) or that the fees paid by the plaintiff should be refunded. I have seen the comments that have been filed as noted above. I am entirely satisfied with these comments, which in my view are fully in accord with the letter and spirit of the concept of alternate dispute resolution by way of mediation. It is also be clear from the comments that in fact the mediation exercise was carried out. Learned counsel for the plaintiff submitted in part that no counter affidavit or reply had been filed to the application under consideration by the Centre, and that this was also a ground for allowing the application. Again, in my view and with respect this submission is misconceived. The propositions stated in the comments filed by Mr. Noor Khan are, in my view, in accord with principles of and rationale behind alternate dispute resolution. It is, inter alia, noted in the comments that the record of the mediation exercise is strictly confidential and it is not even to be produced before the Court. I would not perhaps go as far as the stand taken by Mr. Noor Khan that there can be no circumstances whatsoever for the record to be produced before the Court, since I am of the view that in rare and exceptional circumstances the record may be produced before the Court (but only for the perusal of the Court itself and not by any party), I expressly leave this point open to be considered and decided in an appropriate case. However, having heard learned counsel for the plaintiff and seen the comments, I am satisfied that the present application is not such a case. In view of the foregoing position, I find no merit to this application which is accordingly dismissed. K.M.Z./A-52/K?????????????????????????????????????????????????????????????????????? Application dismissed.