Osama Zulfiqar<\/p>\n
In the late nineteenth century, the British Prime Minister famously remarked, \u201cJustice delayed is justice denied.\u201d 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\u2019s 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.
\nThe 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.
\nThis raises the question: is the resolution of disputes exclusively attainable through the courts? Emily Dickinson\u2019s words come to mind: \u201cThe soul should always stand ajar, ready to welcome the ecstatic experience.\u201d 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: \u201cThe believers are but one brotherhood, so make peace between your brothers. And be mindful of Allah so you may be shown mercy.\u201d
\nWhat \u201cecstatic experience,\u201d 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 \u2018Jirga.\u2019
\nMediation 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.
\nIn contrast, the Jirga is a male-dominated council that resolves disputes based on local customs and practices. Unfortunately, some of these practices, such as \u2018Sawara,\u2019 \u2018Vanni,\u2019 or \u2018Sung Chatti,\u2019 involve the bartering of women as a means of dispute resolution, undermining women\u2019s 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.
\nGlobally, 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\u2014M\/s Mughals Pakistan (Pvt) Limited v. EOBI and PRIMACO\u2014to mediation, distinguishing it from arbitration and litigation. In his detailed judgment, he quoted an international mediator who said, \u201cAn ounce of mediation is worth a pound of arbitration and a ton of litigation.\u201d
\nMediation 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.
\nPakistan has been slow to embrace innovative practices, as Allama Iqbal aptly captured: \u201cSome playful person has written this poetry line on the arch of the mosque: When it was the time to act, the fools prostrated.\u201d Reflecting on the Treaty of Hudaybiyyah, one can see how mediation has historically been an effective tool for dispute resolution.
\nIt 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.
\nEqually 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.<\/p>\n
The writer is a law student at the University of London.<\/p>\n","protected":false},"excerpt":{"rendered":"
Osama Zulfiqar In the late nineteenth century, the British Prime Minister famously remarked, \u201cJustice delayed is justice denied.\u201d 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\u2019s judicial […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[10],"tags":[13560],"class_list":{"0":"post-455570","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-article","7":"tag-osama-zulfiqar"},"yoast_head":"\n