Mediation-A right click-A Game Changer

ADR Centers started working in Punjab from 1st June, 2017. Since their inception, thousands of cases have been resolved so far across the Punjab thereby eliminating the dispute and the litigation.

                                

This was a revolutionary step by Honorable Mr. Justice Syed Mansoor Ali Shah who has now been elevated as Judge of Apex court of Pakistan i.c.Supreme Court. ADR system has proved to be a game changer in many perspectives and for many reasons due to which I felt the need to write this post for the readers. 

Concept of mediation is not new in our society as it has been in practice through different procedure and with different names. There were and still are in Panchayats and Jirgas in certain areas. In certain families and localities there is a practice of approaching a respectable person in case of a dispute. Likewise, in the Islamic perspective, mediation is present. Its description can well be found in following Quranic Verses and Sunnah of Holy Prophet PBUH. 

Have fear of Allah and resolve your differences. (Surah Anfal, 8:1) 

And if two parties among the believers fall into a quarrel, make peace between them. (Al-Hujurat:9    

Holy Prophet Muhammad PBUH is the last Messenger of Allah Almighty. Sunnah of Holy Prophet is also a source of Islamic law. Among many others, a great example of resolution of dispute with help of a neutral third person is also found in Sunnah of Holy Prophet PBUH which is quoted here. During reconstruction of Holy Kaaba (Holy place in Mecca where Muslims go for performing Hajj/Pilgrimage), a dispute arose among the tribes in Mecca to have honor of placing the Hajr-e-Aswad (Holy Black Stone) on its due place in the wall. There was a deadlock in their negotiations when the matter was referred for mediation to Holy Prophet Muhammad PBUH. Holy Prophet PBUH asked all the leaders of tribes to come forward. Hajr-e-Aswad (Holy Black Stone) was put on a sheet of cloth and all the leaders of the tribes were asked by Holy Prophet to hold one end of the sheet in their hands and raise towards its due place. Such was a the prudence of our Holy Prophet who introduced the resolution of dispute amicably this much long time ago.  

Previous to this mediation regime, there was Section 89-A in Code of Civil Procedure. There was Arbitration Act, 1940 in force. There was arbitration council at Union Council level which were mostly operative for family disputes and in family law there were provisions of reconciliation in the court and after court proceedings, same was carried on through concerned union councils.

I want to share with the readers very interesting quotations of legends on the point of ADR/Mediation.

“The greatest lesson in life is to know that even fools are right sometimes.” — Winston Churchill

“In the middle of every difficulty lies opportunity.” – Albert Einstein

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln

Now coming towards legal system, we have civil courts in three classes being Class-I, II and III then the court of District Judge/Additional District Judge then High Court and Supreme Court. On the other hand in criminal procedure, we have Judicial Magistrate 1st Class/Section 30, Sessions Judge/Additional Sessions Judge then we have High Court and Supreme Court. There are certain other courts like consumer court, banking court, revenue court etc. All these courts are having pendency of cases which increases day by day due to fresh cases or due to preference of appeal/revision against orders of their concerned lower courts. According to survey there are nearly ten hundred thousand cases pending in the courts in Punjab. The number of judges as compared to population of Punjab was so meager that it was not practically possible to dispose off the cases in short span of time. This scenario resulted in huge backlog of cases in Punjab which was increasing day by day. Thousands of cases are pending in each district of Punjab making it up to hundreds of thousands of cases through out the province. There is no magical thing in aid to dispose this huge back log at the earliest and provide relief to the litigant public. At this stage it was necessary to bring reforms in the system so as to compete with the growing pendency for which many steps were taken and one amongst them was establishment of an ADR Center in every district.

What difference does it make when a case is disposed off at ADR/Mediation Center. Before going into this, I want to highlight that there is a time frame for resolution of dispute at Mediation Center in the following terms:

• For a civil and criminal case there are 30 days.
• For a family, guardian or a rent case there are 15 days to dispose off.  

This deadline also bears the purpose that cases should not be kept in long waits in order to make it successful settlement rather the process should be exercised and maximum time deadline has to be observed. If the deadline is reached without settlement, it has to be returned back to referring court or further time is to be sought by the mediator. So the mediator take every reference of dispute as a challenge and strive hard to make out things in shortest possible time.

Now coming to the difference mediation is creating, I will explain it in following lines: 

1. Courts refer the potential cases having tendency of compromise to mediation which reduces burden of trial courts and appellate courts. Once a matter is settled at ADR Center through successful mediation, it buries the litigation as mediation is participante and the decision is made by the parties themselves which is a win/win situation and none of them prefers an appeal, review or revision against the said order. In this way mediation not only reduces the burden of trial court rather it also decreases the number of fresh institution before the appellate forums. 

2. There are great chances that when parties enter into compromise in case referred to mediation, mediators ask the parties if they have any other case pending in courts and if its reply is in affirmative, mediators try to resolve that case too through mediation. In this way also mediation reduces the burden of courts.  

3. Upcoming litigation is also discouraged to a great extent in mediation by determination of future relationship of the parties in dispute. Upon a successful settlement in a reference, I ask the parties about their future relations and they response in affirmative in 95 percent of the case approximately. This is because their ego is no more with them. In remaining 5 percent they say that they do not want to maintain any relationship and promise not to infringe each other's rights in future.

4. An important role of mediation is regarding time frame. As discussed above, a family suit or a rent or guardian petition is to be disposed off within fifteen days while civil or criminal case is to be disposed off within a month at mediation center. There is no wastage of time in case even a mediation proceeding fails to arrive at a settlement and otherwise if it succeeds, it eliminates litigation in a very short span of time. 

Now talking about the statistics of ADR Centers in terms of disposal, I being mediator at ADR Center Sargodha, have been successful in more than three hundred mediation proceedings out of total reference of nearly four hundred. Likewise, all over Punjab thousands of cases have been disposed off through mediation since June, 2017 and litigation between the parties has come to an end. According to my humble point of view, mediation is a right click, a game changer. Feel free to share you views. Thank you...