Osama Zulfiqar
In the late nineteenth century, the British Prime Minister famously remarked, “Justice delayed is justice denied.” Among all the territories where the sun never set in the British Empire, this statement aptly mirrors the current backlog of cases in Pakistan. It is worth noting that 2.2 million cases are pending across Pakistan’s judicial system, with 0.35 million before the Constitutional Courts and 1.82 million awaiting resolution in the District Courts. The critical question is how to address this persistent obstacle to legal access.
The primary objective in the current scenario must be the timely settlement of disputes. However, with only four thousand judges, access to justice has become little more than a myth. Typically, the failure of negotiations leads parties to litigation, a process akin to using a hammer to paint a landscape, given the backlog of cases. Despite the strongest precedents and statutory laws supporting a case, the outcomes often remain unsatisfactory. According to the Law and Justice Commission of Pakistan, the average lifespan of a civil case is 15 years. Over such an extended period, priorities can shift, and interests may evolve, leaving parties disillusioned with the process.
This raises the question: is the resolution of disputes exclusively attainable through the courts? Emily Dickinson’s words come to mind: “The soul should always stand ajar, ready to welcome the ecstatic experience.” Perhaps hope lies in alternative approaches, harking back to the 7th century. The Holy Quran offers clear guidance, as stated in Verse 10 of Surah Al-Hujrat: “The believers are but one brotherhood, so make peace between your brothers. And be mindful of Allah so you may be shown mercy.”
What “ecstatic experience,” as Emily Dickinson suggested, could guide us out of this predicament? Undoubtedly, Alternative Dispute Resolution (ADR) has become a necessity. Among its methods, mediation stands out as a vital tool to ensure access to justice. To fully appreciate its value, it is crucial to understand what mediation entails and how it differs from practices like the ‘Jirga.’
Mediation is a participant-driven process facilitated by a neutral third party, the mediator, who helps the parties find common ground and explore potential solutions. Unlike judges, mediators do not issue binding decisions, yet settlements reached through mediation are enforceable.
In contrast, the Jirga is a male-dominated council that resolves disputes based on local customs and practices. Unfortunately, some of these practices, such as ‘Sawara,’ ‘Vanni,’ or ‘Sung Chatti,’ involve the bartering of women as a means of dispute resolution, undermining women’s dignity and violating international human rights conventions like the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. Despite the Sindh High Court outlawing Jirgas in 2004 and the Supreme Court declaring them unlawful in 2019, these practices persist.
Globally, mediation has emerged as an effective strategy for resolving disputes. A key question, however, is why parties would choose mediation. Recently, Justice Mansoor Ali Shah directed two cases—M/s Mughals Pakistan (Pvt) Limited v. EOBI and PRIMACO—to mediation, distinguishing it from arbitration and litigation. In his detailed judgment, he quoted an international mediator who said, “An ounce of mediation is worth a pound of arbitration and a ton of litigation.”
Mediation focuses on interests, causes, and issues rather than just claims. The process is not only swift, often concluding in days rather than years, but also cost-effective. Moreover, mediation is dynamic, allowing parties to determine procedural norms, and it is entirely confidential, which helps preserve interpersonal relationships. Unlike litigation, mediation is a party-centred process, offering greater control over outcomes and fostering more amicable resolutions.
Pakistan has been slow to embrace innovative practices, as Allama Iqbal aptly captured: “Some playful person has written this poetry line on the arch of the mosque: When it was the time to act, the fools prostrated.” Reflecting on the Treaty of Hudaybiyyah, one can see how mediation has historically been an effective tool for dispute resolution.
It is remarkable to note that mediation ensures equity among parties, even if it initially seems insurmountable. Has mediation transformed judicial systems elsewhere? Yes, in Singapore, where approximately 70% of mediated disputes are settled, and 90% of these are resolved within a single business day.
Equally notable is the seven-year legal battle between Apple and Samsung, which began in 2011 and concluded in 2018 through mediation. Ensuring access to justice not only fosters peace and resolution but also attracts foreign investment. Addressing the case backlog and promoting ADR models like mediation has become an urgent necessity. For me, mediation is the way forward.
The writer is a law student at the University of London.
