Pakistan’s judicial system is overstretched beyond capacity and the burgeoning population is compounding this. Since reform has its limitations in addressing workload, Alternative Dispute Resolution (ADR) mechanisms become critically important for legal assistance of the poor and the marginalised who are often left battling in the courts for years.
The Alternative Dispute Resolution refers to an “amicable, conclusive and out of court resolution of dispute.” This includes a wide range of remedies such as negotiation, mediation, conciliation and arbitration. Other forms include case management, ombudsmen schemes, early neutral evaluation, initial interpolation, etc. These processes are relatively inexpensive and expeditious compared to the conventional judicial processes and can be creative and flexible. For these reasons, many countries are experimenting with ADR programmes. In the United Kingdom, there has been a dramatic drop in the number of cases proceeding to trial over the past 20 years. This has been termed the phenomenon of the ‘vanishing trial’. The trend can be attributed to the availability of a wide range of private dispute resolution processes in the country and has its roots in the Woolf Reforms in 1990s, which aimed to address the complex adversarial nature of the civil justice system of England. In the landmark case of Cowl and others v. PCC, the apex court dismissed the appeal on the ground that the petitioner had failed to consider the methods of Alternative Dispute Resolution. This view was followed in Dunnett v. Railtrack and Hurst V Leeming.
Another policy initiative in the UK is the use of technology to provide court-based Online Dispute Resolution for low value civil claims. This has resulted in an increase in access to justice because it is a cheaper, more convenient and less forbidding system.
Pakistan embarked on its ADR journey back in 1998 with launching of pilot projects and legal study programmes. The ADR is both implicit and explicit in Pakistan’s legal framework. Today, judicially-backed ADR centres exist and in January 2017, an Alternative Dispute Resolution Bill was approved by the National Assembly Standing Committee on Law. The law focuses on out-of-court settlements through Panchayats or Jirga and arbitrators appointed by trial courts with the consent of parties.
Here it is relevant to flag that the emphasis on traditional methods such as Panchayat and Jirga has its limitations as far as women’s rights are concerned, as they have often resulted in rulings against women. One such devastating example is Mukhtaran Mai, the survivor of a gang rape, which was a form of ‘honour revenge’ and took place on the orders of a tribal council. Similar horrific crimes against women include honour killings, live burials, and childhood marriages.
Part of the reason is lack of safeguards and codes-of-conduct to guide functioning. The current Bill aims to address this. It is critical that ADR mechanisms are empowering for women and will not force them into out-of-court settlements and create further obstacles for them to seek justice.
More broadly, there is also the need to spark discourse about legal rights surrounding the ADR and how its mechanisms can be used more effectively among the poor and marginalised groups, especially women. ADR training should be provided to judges and attorneys. Lawyers should inform clients to avail ADR as pre-trial proceeding and civil society should establish the necessary number of centres for conducting proceedings. There is also the need for outreach campaigns via media and specialized training programmes for lawyers and bar associations to garner greater buy-in from the legal community. It is critical to develop a cohort of community activists, including women, so that uptake of the ADR and accountability of forums to local level can be increased.
To conclude, development and mainstreaming of the ADR is necessary to address the backlog of cases, but it is equally important to develop safeguards so that the ADR empowers rather than undermines women’s access to justice. In addition, the societal context shaping gender biases must also be dealt with. Together, these measures can translate into real and concrete change for women in Pakistan.
By Leena Nishtar