Whilst working in legal field over the last two decades, I, like many if my contemporaries found that access to justice was greatly impeded in Pakistan. With an over burdened court system, a history of getting stay orders rather than resolving cases, an uncomfortable environment especially in the lower courts to bring cases to (not to mention especially for women), overly lengthy and expensive court cases lasting on average 5-8 years, the courts had become a difficult and often an impossible and frustrating place to resolve issues. In this scenario, even those with legitimate issues, and especially women, whether at work or home, have become shy to take issues to the courts of law to resolve their disputes.
Many of us in the legal field, seeing this reality emerge, recognised mediation as an avenue of better, faster and cheaper dispute resolution. Mediation is an Alternative Dispute Resolution (ADR) method which works alongside the court systems existing in a country. It is a method where a trained mediator, as a neutral person, facilitates a dispute to its resolve through a standardised process and leads the movement of the parties through the dispute, to a workable solution for all parties. It is far cheaper than going to court and much quicker, often resolving disputes in a matter of days rather than the lengthy back and forth of courts and arbitration. It is different to other dispute resolution methods in that the parties have control over the outcome, making it a flexible process. Where courts can prescribe only certain penalties as prescribed by the law (such as damages or money to be paid by one party to another), mediation allows for a whole host of solutions. For example, in cases we have seen, an apology suffices from one party to another, and is enough to avoid a business or other relationship going sour. In other cases, different types of payment schedules can ensure payment and enforcement of dispute solutions which suit the different parties represented there. Mediation is a private, confidential process and makes sense in our country’s environment where people are shy to discuss their issues in public. It is a tried and tested method which has worked successfully in many other countries.
In Pakistan, mediation has had the support of senior members of the judiciary working to provide access to the common man, corporations and everyone in between to a dispute resolution process. In fact, over the last few years a number of members of the judiciary both in Sindh and Punjab have had skills training, with overwhelming success. As recently as this year, High Court Judges of Punjab have successfully qualified as mediators. Mediation is a viable option for many kinds of cases, especially in commercial matters between companies, for internal Human Resource matters, as well as intra departmental issues. It is also a useful option for resolving family matters, including divorce/custody as well as family business management where privacy is a serious concern. The mediation process allows greater flexibility and a quick resolution to cases, often within 1-3 days. Internationally, it is a widely used resource, taught in schools and universities, and utilised across the board. Mediations come in the form of court referenced mediations and in many cases parties choose to go directly to mediation.
In Pakistan mediation has slowly started. In 2004 The IFC, working alongside the Center for Effective Dispute Resolution (CEDR, UK) , their delivery partner, launched a mediation program in Karachi to promote the same. Approximately 49 mediators were trained initially and 12 Master Trainers. In 2007 the Karachi Center for Dispute Resolution (KCDR) was set up as an independent mediation center. Since then Master Trainers from Karachi have been delivering training to the judiciary, including lawyers and judges, ombudsmen, and corporate personnel. Earlier this year the Pakistan Mediators Association (PMA), a nationwide effort, was launched to facilitate mediators after mediation was launched in Lahore. In Lahore another batch of mediation training by IFC/CEDR led to the accreditation of mediators and trainers. In May 2013, the International ADR Trainer’s Network was held in London, hosted by CEDR where trainers from all over the world got to work together on the Mediation front. Trainers from across Pakistan had the opportunity to attend the session.
At the International ADR Trainers Network, mentioned above, Master Trainers from Pakistan had an opportunity to meet other Trainers from across the globe, including from the UK, Italy, France, Bulgaria, Greece, Lebanon, Egypt, Nigeria, South Africa and Germany. From the discussions, it emerged that many of the challenges we face in Pakistan, other countries have faced as well or were facing. For example, in the Italian experience, the proliferation of mediation services sprouted to huge numbers with mediocre to barely trained mediators attending cases in private offices, and over regulation of the field creating obstacles. What worked for them was a project called “Project Mediation” which included seminars and mock mediations in front of judges. The European experience put forward the need for mediation to be introduced for cross border cases. From our Greek counterparts, Trainers discussed, inter alia, the need for standardisation of what should be included in curriculums teaching mediation, as well as the need for including psychology of conflict theory in courses.
The Trainer form France mentioned how mediations in that country were voluntary except family mediations, where people were pushed to go to mediation. She mentioned that the quality of training being delivered needed to be raised. In Pakistan training had focussed on the legal community mainly and some of the challenges we had faced included helping litigators understand that this was not a system that hinders their bread and butter, but rather creates an opportunity to resolve cases quicker whilst building the faith of people coming to lawyers for resolution of disputes. In Italy, notoraries, accountants, all have mediation chambers, whereas in France where mostly lawyers used to be involved in the process, now the field had opened to other professionals. In the UK, many lawyers and other professionals handle mediation. All kinds of commercial mediation is covered with some mediators focussing specifically on large groups involving public policy and environmental mediators. Such mediations involved large groups of people such as local communities dealing with government policies as well as housing communities working with management.
The trainers’ discussion identified the need for international standards and assessment thereof. Pretty much all the countries represented there saw that an international benchmark was very important, such as being associated with an international organisation like CEDR. In respect to training, the essentials needed to be included into the mediation course were mapped out including a focus on enforcement of mediation agreements, ethics, law and civil procedure, negotiation skills and principles. Quality assurance of the process was seen as a vital part of delivering training and the Demonstration portion and Role Play segments where recognised as integral.
All in all the international session was a resounding success and participants from their various countries took back useful and irreplaceable learning. Across the world, the challenges of dispute resolution and creating opportunities for people to have access to justice exists; along with those working toward finding solutions. Many of the issues we face in our respective countries are similar in nature; many difficulties we encounter have been encountered by others. In the quest for creating safe spaces for people to resolve their differences in any aspect of society, international programs such as these help us realise that we are not alone; others have also faced similar challenges, and working across the board, we are able to find new solutions to old problems. In Pakistan, mediation has created an excellent opportunity for people to resolve any size of dispute, whether it has freshly arisen or has existed for years. It is an opportunity for companies and individuals alike to understand that disputes need not fester, that they can be resolved painlessly, inexpensively and quickly.