In the present world scenario where conflict has transformed from inter to intra state, an indigenous system for peace building is the only tool for durable peace. It is a well-understood fact that no system of governance in the world is perfect. While government institutions are there to provide effective security and access to justice many petty issues not only overburden the government systems but also waste a lot financial and human resources of the parties that are related to the conflict. Unless and until the government and the communities join hands the security and justice system will remain in jeopardy. The main objective of a modern system of justice is to deliver peace and security and provide community cohesion. Such an indigenous system supports the government and minimizes pressure on the law enforcement agencies and the judicial system of the country.

Crime and punishment are conventionally spoken of as if they were opposite, yet both are committed in the name of morality and justice, and both use violence as the means by which to attain those ends. So not only are their ends identical, so are their means. Crime is a Violation of people and of interpersonal relationships. Violations create obligations. The central obligation is to put right the wrongs. Crime involves injustices, which needs healing to victim, relationship, offender and communities. Criminal justice system deals with the crime and punishment but leave the enmity as it is and give ample opportunity to the victim for revenge. Criminal justice system also based on legal evidence and imposes punishment to deter the people to keep themselves away from crime. Its process is time consuming, long and wastage of time and money. The people need community based available cheap justice system to resolve their pity issue, prevent it to become violent and conflict and live together in harmonious way. There is indigenous institution in Khyber Pukhthoon-khawa working still effectively on the gross roots level. Jirga is one of the best examples in practice from time immoral. With the introduction of new concept to an institution like Jirga can be use affectively along with court annexed mediation system and capacity building of young graduate of the old and new concept for affective implementation of the community based justice system. A new concept parallel to the criminal justice system going side by side across the globe is restorative justice system. Restorative justice is a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future.

Alternative Dispute Resolution

Dispute Resolution Legal & ADR

1. Facilitation:

To facilitate a process is to make it easy. It is not to control or dominate it. The tasks of a meeting facilitator are many, requiring close attention, clear thinking and sensitivity:

• planning the agenda, after consultation with those concerned;
• explaining the proposed content and agenda of the meeting/discussion, and particular processes within it, and reaching agreement on it and on the conduct of the meeting ;
• facilitating those processes and ensuring that the agreed content is covered within the time available (and if that is not possible then renegotiating time and content);   
• helping to create a constructive, relaxed atmosphere and paying attention to the feelings of all who are involved;
• eliciting, clarifying, collating and summarising ideas and experiences, and offering concepts to encapsulate them (‘clarify, connect, conceptualise’);
• presenting ideas and information;
• helping to manage power relations between different participants and ensuring that all have a voice;
• paying attention to collective and individual feelings and energies, responding to needs for change in the process, for breaks, emotional support, refreshment etc;
• as necessary, challenging things that are said and facilitating the management and transformation of conflict within the group;
• from time to time, helping to clarify where the process has got to, in terms of both ideas and feelings, for instance by asking questions, summarising, or reformulating goals;
• when the time is right, seeking agreement on particular issues under discussion;
• ensuring  that any necessary follow-up is agreed and provided for

Mediation

Mediation Defined and Explained

Mediation is a process that facilitates third party intervention in a dispute so that the parties in the dispute are enabled to undertake a formal and peaceful dialogue to decide for their own future course without resorting to violence. This implies that the parties in a dispute are empowered to take responsibility for their own lives and comfort.

There are three major characteristics of the process of mediation;

• Trained neutral third persons to help people talk rationally, peacefully and respectfully
• Parties are provided space to duly explain their issues and feelings
• Parties are enabled to find out alternatives
• Parties are facilitated to mutually decide about the future of the issue

Explanation

Mediation is undertaken by the third party who may be an individual or group of community leaders, elders or outside interveners invited by one or both of the parties to a dispute to help resolve their issues. In traditional societies, these skills are learnt through culture and experience. However, these skills can be reasonably documented and learnt. Skills of mediation involve training on certain general rules and principles, which can be applied with some wisdom in different situations. With application of these skills, the mediators demonstrate their sincerity thus gaining confidence of the parties. Parties are thereafter convinced to sit for negotiation and committed to reaching an agreement under the mentorship of the mediators. These principles are explained in details in the later part

One of the major skills involved in mediation is guiding the talk. This helps the parties to avoid exchanging hot words with each other. Rather the mediator listens to each party and asks questions and clarifications. Thus the parties in a dispute have space to present their arguments and feelings in an environment of peace. The parties thereafter develop a better understanding of each other’s side of the story and also understand the emotional aspect of the other party in an empathetic way. This sounds difficult but if pursued strategically, this can pave a way for a sustainable settlement of the issue and restore the relationship between the parties to a pre conflict stage. This also implies that the mediators do not seek power over the parties but do control the process. Mediators do not decide, but let the parties reach an amicable settlement. Keeping in mind the spirit of the ends of justice, mediators facilitate the process by helping the parties identify and clarify their respective issues, locate and start from a common ground and generate alternatives for the parties. Parties then decide what is good for them. This way the mediators maintain a posture of neutrality, which gains them the confidence of the parties. To retain this confidence, the mediators avoid passing judgments, and refrain from taking sides during the negotiations.

Sometimes an argument can be made that no one can remain neutral in a situation of conflict, particularly those who involve themselves voluntarily such as the mediators. Neutrality during the process of mediation means constructive neutrality. This is done to empower the parties to take charge of their lives and act with responsibility. However when there seems to be a clear stance of injustice being imposed by a stronger party over a weaker party, it becomes the duty of the mediator to take the side of the weaker party. This is then called as advocacy for the weak party. Advocacy is done in a peaceful and non-violent manner to level up the power imbalance between the parties so that the negotiation between the disputing parties is done without duress or coercion and in a rational manner.

Why mediation

Response of people in a situation of conflict or tension is different from their usual response.  In conflict or stress, people tend to be more cautious, aggressive, reactive and defensive. These responses or approaches can be classified into the following types:

• accommodative
• compromising
• cooperative
• negotiating
• collaborative
• competitive
• coercive

The choice of these responses depend on a variety of factors including stakes in the conflict, nature of the conflict, relationship between the parties and characteristics of individual parties. However, it is clear that parties need to talk in a peaceful manner to reach an amicable and peaceful settlement of their disputes.

We have two types of usual responses to a conflict situation. We either shy away from a problem (avoid the issue), or we get violent. Skills of mediation and communication give us a set of tools to identify the issues clearly, separate people from the problems and look for solutions that are useful for both or all the parties in a dispute. These skills are not always present and exercised by the parties. It is for this reason the mediators are trained to facilitate a dialogue between the disputing parties.

Types of Mediation

Strictly according to the definition presented in the start, mediators are not required to advise the parties. However, some practitioners feel that when it is useful to advise the parties or give them analysis of a situation, the mediator should present his or her honest views to the parties. In addition, mediators are considered to be responsible not only for the process of mediation but also as peace builders. They volunteer to help the parties heal the wounds of the conflict, rehabilitate the victim and restore their relationship to a pre-conflict situation. Therefore the role of mediators can be described in the following three ways.

Facilitative Mediation: This type of mediation just requires the mediator to facilitate the talk. The mediator or mediator’s role is very limited. The parties in such a case are fairly educated and understand the limitation of the mediators as well as fallout of the failure of mediation process. This is generally practiced effectively in western societies.

Evaluative Mediation: Sometimes the mediators need to inform the parties on technical outcomes of failure of mediation. The mediator may explain to the parties that if they fail to reach an amicable settlement, their case will be tried in a court of law which will cost a lot of money and take a lot of time. This way the mediator is not being selfish but the parties are only being informed of the consequences and technical difficulties confronting the situation. Ideally, even this much of input from mediator is not desirable unless it is felt necessary to educate the parties.

Transformative Mediation: This type of mediation is done actually after culmination of a successful facilitative mediation. When the parties arrive at a mutual agreement on the basic issues, the facilitator then attempts to help the parties recover from the emotional stress suffered during the conflict; heal the psychological wounds and restore the relationship.

Stages of Mediation

The process of mediation can be distinctively described in the following manner:

Pre-mediation: As is evident, this is the stage for preparation by mediators. Mediators need to gather information about the parties. They need to understand the history of relationship between the parties. After attaining sufficient knowledge of the parties, the mediators need to strategize for a welcome entry to the situation. It may so happen that one of the parties may refuse to recognize the mediator as a neutral third person. In such a scenario, mediation will fail. The goal here is to gain the confidence of the parties.

Explaining the Process of Mediation: The process of mediation is simple however, if not understood by  the concerned parties or the mediators themselves, the effort may not yield any results.  The mediators must proficiently explain to the parties all the strengths and weaknesses of the process and allow the parties to decide independently if they wish to resolve their conflict through the process of mediation.

Agreement for mediation: Once the parties to a dispute have agreed to undertake mediation, the intervener has to clarify some of the issues listed here;

Who will attend the meeting?

What will be the purpose of such meeting?

What will be the time for the meeting?

Where will the meeting take place?

Who will be the mediator/s?

Mapping the future of the conflict: After the parties have agreed to settlement of their dispute through third party mediation the mediator/s has to go to the second stage of mediation. That is to help the parties explore the possibilities of future of the conflict by taking them out of the heat of the conflict. Ask about their concerns for the future and help them visualize in what direction things can move and what costs would it carry. Also, ask their opinion about how can the disputes be resolved peacefully and what could happen if it is not resolved.

Identification of issues: Check which party will talk first. Then:

• Listen to first party, use listening techniques, seek clarifications, summarize at the end, express hopes and concerns
• Listen to second party, use listening techniques, seek clarifications, summarize at the end, express hopes and concerns

Help parties identify issues and recheck with the parties on issues. Identify the common ground and expose it to the parties.

Problem Solving: The mediator listens to and acknowledges feelings of the parties like hurt, anger and frustrations. After this tricky session, once the psychological outburst of the parties is over, the mediator looks for and identifies a common ground between the parties.

The mediator coaches the parties and suggests them to talk to each other directly, affirming positive moves and expressing hope based on the progress made.

Following techniques are used for the process;

1. Active listening throughout the process
2. Clarify issues and state them in simple terms, recheck with parties
3. State common concerns and highlight common ground
4. Agree with the parties to start working with one issue at a time
5. Suggest to take up the easiest issue first
6. Discuss each issue on the list with parties and hear their respective perspectives
7. Separate positions and demands from underlying interests
8. Help parties generate options and proposals for resolution of the issues
9. Help parties evaluate options
10. Agree with the parties to select an option and help plan its implementation
11. If the parties need to sit for more than one session, summarize the progress made, highlight the issues in hand and check for appropriate time and venue for next meeting

Agreement: The agreement needs to be summarized. Main points of the agreement need to be written and a follow-up plan needs to be put in place in a clear and concise manner. The agreement has to be based on broader principles of justice and fair-play. It has to be realistic, doable and simple.

After reaching the agreement, the parties need to indicate, how they wish to resolve future disputes regarding implementation of the agreement as well as other issues arising out of the relationship. The parties need to clearly indicate their support for the agreement. The agreement needs to be registered on paper and signed by the parties. Such an agreement, once reached, needs to be attested by a government agency having due influence on the parties like the police or a civil judge.

Difference between Mediation and Arbitration

In our cultural context, usually the parties invite or accept an outsider to come and decide for their issue. The intervener receives sureties from the parties who pose complete trust in the fairness of the person doing intervention. The intervener uses his personal wisdom, applies some traditional tools and gives the verdict which the parties are supposed to accept. This process is usually visible in our traditional practices like that of Pukhtoon Jirga or Panchayat etc.  Technically this is a raw form of arbitration rather than mediation.  But another problem arises when in a future scenario one of the parties interprets the decision of such arbitration to his/her own advantage and the conflict restarts. Even the intervener who decided the case earlier does not have any tolls or process to oblige the parties to implement the decision the intervener made.

Both arbitration and mediation involve third party to assist in resolution of a dispute, however, in arbitration the intervener is allowed to make a judgment and announce a verdict after due process of hearing the parties, identifying the issues and collecting evidence. Such a decision then is binding on the parties and the state agencies can duly intervene for proper implementation of a decision of arbitrators. On the other hand, in mediation the process of making a decision is left to the parties.

There are merits of undertaking arbitration to the extent that it saves time and energies and presents the parties with a reasonable solution to their dispute. This process is more popular in corporate environment where parties work and interact under a quasi legal framework of market laws and day-to-day disputes do not carry too much of emotional involvement by the parties.

Is Arbitration a Part of DR or ADR?

Technically, the process of arbitration also involves decision by a third party, but since arbitration involves written consent of both the parties by nominating arbitrator(s) acceptable to both, it is considered that the parties have recognized the complexity of the issues and both want the issues to be settled amicably. Therefore, arbitration gives more space of participation to the parties and they are more satisfied with the outcome than the one imposed on them through litigation. Litigation is cumbersome, expensive and tiring whereas the proceedings of arbitration are more informal. Therefore for our purpose, we consider Arbitration as a part of ADR.

Arbitration

Arbitration Definition

When we find our kids complaining about each other, we are quick to hush up one and secure the other. This is a raw form of arbitration which may be defined as a process of deciding an issue between disputing parties. Arbitration has been in practice in all traditional societies since ages. Arbitration is a proceeding administered and managed by an independent third party for two or more parties having a legal dispute. The parties present their arguments and evidence to an arbitrator who decides the case. Arbitration may be conducted by one or more impartial persons called third party arbitrators. The parties to the dispute give expressed consent of allowing third party to resolve their issues.  Selection of arbitrators is based on the relationship between the parties. In some cases, the parties may be under a written contract or agreement to resolve their future disputes through arbitration. In other cases, the parties may agree to have their issues decided through arbitration rather than direct negotiation or judicial litigation. The names of such arbitrators may be agreed by the parties at the time of writing a contract or the same may be left to be decided when the dispute arises. However, all the parties to a dispute must agree and trust the

society we are inclined to offer as well as undertake arbitration more often than using other methods of dispute resolution. This is particularly common in the tribal areas of Khyber Pakhtunkhwa and Baluchistan where the interveners obtain the consent of the parties to decide about their issues, whether civil or criminal, through a Jirga. A similar pattern has also been adopted in the Panchayat system. However, Arbitration is mostly successful in corporate environments or other civil disputes like rent cases, labor, construction, and securities regulations etc.

The process of arbitration has advantages over the regular judicial litigation in some ways. It saves the time of the parties in comparison to the time it takes to have a civil case processed through a court of law. This also saves the time of the court thus reducing the workload on judiciary. This process is cheaper as it does not involve incurring expenses on hiring a lawyer and paying court fees.  

Advantages of Arbitration

In comparison to legal or judicial process, arbitration is simpler, speedy and cost effective.

• It saves money, is less expensive;
• The rules are simpler as compared to litigation;
• Hostilities are halted;
• Parties can continue to negotiate while arbitration is in progress, and
• In terms of time and venue, arbitration is more flexible than litigation.
• Arbitration without court intervention

This is done by private parties mostly in business and trade. Provision regarding dispute resolution through arbitration is generally made part of the contract agreement. If the arbitration so undertaken confirms to the provisions of the Arbitration Act, the parties can take the award of arbitration for attestation by a civil court. This war an arbitration award becomes a decree of the court and is enforceable by state agencies.

• Arbitration where no suit is pending

When the parties have an agreement to resolve disputes through arbitration, and one of the parties approaches a civil court, the other party can ask the court to refer the matter for arbitration as already agreed under the contract.

• Arbitration in suits

The parties can also request the court to have their case processed through arbitration rather than litigation.

From the above, it is clear that there are three distinct types of arbitrations which can be explained in the following table.

The Arbitration Act also gives details of issues involved in arbitration as described below;

Salient Features of Arbitration

• There must be a written agreement between the parties to submit their present or future disputes for arbitration.
• Name of arbitrator(s) or their numbers can be agreed upon in a contract document or can be decided at the stage of dispute resolution.
• The number of arbitrators can be one, two, three or even more. In case of even numbers, one has to be an umpire.
• In the case of an even number of arbitrators, an umpire is to be appointed according to the procedure given in the Act.
• Where the arbitration agreement does not specify the number, the arbitration shall be by a sole arbitrator (First Schedule).
• An arbitrator who does not diligently conduct the proceedings, or who is guilty of misconduct, can be removed by the court after due inquiry (Section 11).
• Death of a party does not terminate the arbitration proceedings, if the cause of action survives (Section 6).
• The arbitrator has got certain statutory powers, including the power to administer oaths to witnesses, power to “state a case” for the opinion of the court etc.
• If a party to an arbitration agreement refuses to go to arbitration due to any reason, the other party can seek intervention of the court to compel a reference to arbitration.

Arbitration Process

Arbitration can be seen as a simplified version of a judicial trial, involving little formalities and simplified rules of evidence. The process of arbitration is explained as under:  

Written Consent of Parties: There must be a written consent by the parties on nomination of the arbitrator/s and issues under consideration, so that such a decision can be implemented after it has been announced and accepted as such by the concerned court.  The consent may or may not include the name of arbitrator/s

Pleadings / hearing the parties: After receiving written consent, the Arbitrators invite the complainant party to give a written statement. The respondent then submits a reply. The arbitrators can ask questions from parties to satisfy themselves as well as to identify issues.

Framing the issues: In order to find out the real issues in a dispute the Arbitrator(s) needs to frame issues. These issues need to be then verified from the parties before undertaking arbitration on the same. Issues are thus identified, bifurcated and checked with the parties. Parties can give clarifications which are to be considered as part of their initial statements.

Oral evidence: The arbitrators can call for or go out to find as much evidence as is required to consider the case and reach a reasonable understanding of the dispute. The arbitrators at this stage have to look for all related evidence regarding the case, like rechecking the records, talking to people and connecting the links, so as to establish merits of case based on the statements of the parties and the issues identified thereafter.  

Based on the plaint, the defense and the evidence observed by the arbitrator(s), the parties are invited to raise arguments in favor of their respective case.

The award: The award has to be in writing and signed by the arbitrator.  

The award must be pronounced within the time limits laid down in the arbitration agreement or (failing such agreement), within 4 months of the commencement of hearing. However, the time limit can be extended by the court in certain circumstances.  When there is more than one arbitrator, the majority view prevails. The verdict should not be in contradiction with the wider principles of law, justice and fair play.

Control of the court over the award: Parties are bound by the award of the arbitrators; however, judgment of the court has to be obtained in terms of the award so that it can be enforced.  This judgment is obtained by presenting a copy of the proceedings to the court. The court in turn examines the copy of the proceedings. The court may: 

• pass judgment in terms of the award
• modify or correct the award
• remit the award (on any matter referred to arbitration), for re-consideration by the arbitrator or umpire
• set aside the award  

In short, the court may

 Totally accept the award, or

• Totally reject on grounds of misconduct of arbitrators, or absence of arbitrators. The misconduct may include holding suspicious meetings with one of the parties or the award is not in line with the record or the decision is not according to legal rights or not in line with natural justice.
• Adopt the intermediate course of modifying it or remitting it. 

Conciliation

Conciliation literally means to win the support of friendly feelings of someone, removing the anger or distrust they was felt before.

Both successful arbitration and mediation result in a process of conciliation. This is the last phase of the conflict intervention in which interveners are expected to facilitate the parties to close the chapter of conflict and focus on re- establishing a pre-conflict relationship.

When a conflict is settled through litigation or arbitration, it results in the announcement of an award or decision which is binding on the parties. Parties may not be fully satisfied with the decision but they are left with no option except settling down. Such a process can best be called as “Conflict Resolution” rather than “Conflict Transformation”.

Interventions which cannot lead the parties to voluntary conciliation are seen with lesser credibility as even after the settlement in one form or another, a party may continue to feel aggrieved and wait for a chance to take revenge.

Difficult but still attainable, conciliation can be called as an act of forgiveness by the victim party towards the offender party. It also involves the point where the offender party or both parties in a dispute recognize the wrongs done by them and express remorse voluntarily.

Why Conciliation?

Conciliation is necessary because it assures ending a cycle of violence which would otherwise continue, though under cover for some time even after the issues have been decided by an appropriate forum. The idea of conciliation emerges from the fact that the parties in a dispute can actually come out as beneficiaries of the situation rather than its victims.

Conciliation is done not only in the aftermath of intervention by a third party, but it may well be done at any stage of the conflict like  while the disputants are being treated by police and judiciary under the law.

It is the process of restoring relationship of the parties so as to avoid future conflicts.

Spiral of Violence

Ideally, dispute resolution would mean enabling the parties to agree and practice a peaceful and mutually satisfactory way of building up communication, bifurcating and crystallizing the issues, agreeing on common ground, identifying alternative solutions and negotiating for collaborative agreements.

However, this does not usually happen in a conflict situation where parties are overwhelmed by feelings of hatred, revenge and destruction. In such a scenario, the conflict can seem to end through violence or war by destroying the enemy or surrender or capitulation of one of the parties.

Does it happen so? Will violence by one party always result in total capitulation of the other? At least temporarily it seems so.

Experience tells that the trauma of violence is destructive both for the offender as well as for the victim.   The offender undergoes a number of psychological pressures to justify and exist with the guilt while for the victim; the experience presents a justification to undertake revenge. This cycle of violence does not end any where unless interrupted by outsiders and settled to willful and mutually agreed solutions, resulting in voluntary restitution, symbolically and/or significantly. An act of violence will beget violence even after years and years on.

Methods used for reaching Conciliation

Conciliation can be facilitated between the parties in a number of ways. Some of them are explained here. However, before choosing one or more tools for reaching conciliation, the intervener or the conciliator needs to re visit some of the processes involved in peace building including facilitation, mediation and arbitration, so as to apply the right tools to bring sustainable conciliation.

the main challenges in the field of conflict resolution is not limited to complexities of problem solving methodologies. As explained earlier, problem solving can be achieved through the processes of mediation and arbitration etc. These processes do present a framework in which issues can be identified, narrowed down and then treated one by one so as to afford due understanding and agreement by the parties. Beyond this there are other elements which the parties tend to keep as their personal emotions which are deeper than the apparent issues and which hinder both the relationship between the parties as well as a satisfactory state of mind of both the parties.

Common among them are the perceived memories of the past.  These may include the physical and emotional damages, the pain that has been inflicted, resentments and injustices that have been experienced by the parties. Saying “I am sorry” may not be sufficient for a situation where the feelings of the victim are deeply hurt. Other methods of offering apologies may also not be sufficient at times.

Similarly saying, “I forgive you” may not mean that forgiveness will also bring forgetting the wounds of the episode. Then, how can one let go the anger and move towards restoration of the relationship that has been damaged so badly.

Reconciliation is often a long and tough journey which requires facing the damages and hurts of the past, hearing the anger and resentments of those who experienced it, and helping to undo what ever damage has been done. Some of these steps may seem to be taking us back to the memories of past, thus causing more hurt; however there seems to be no reasonable way of enabling the parties to offer forgiveness voluntarily.

Some of the steps involved in attaining conciliation

Story Telling: Allowing a party to tell the story over and over again has therapeutic effects on the minds of people who have suffered. The victim needs space to tell the story of the incident over and over again in different settings. Story telling in a setting of a direct contact between the offender, the victim and the community can bring consolation and a sense of relief to the victim.

Tell and Retell: For a victim a useful relief could be his/her liberty to express anger, hurt and resentment. This is necessary because this allows a party to a conflict to overcome the trauma, otherwise the party is expected to freeze the emotion and find it difficult to move on with life. Acknowledgement of the feelings of the victim without judgments but with compassion and honesty by a third party gives meaning to the feelings of the victim. This is a common understanding in the field that telling the story of hurt to an attentive listener doesn’t re-inflict injury, rather it is the other way round. This process empowers the victim and contributes positively towards the healing.

Asking questions: Telling the stories is a state of passive blaming where the victim, while emotionally dependant on others, is trying to get rid of the anger that has overburdened the victim. In order to take the victim out of the state of this emotional dependence and emotional trap, the victim needs to be asked questions about remedies. After due process of listening, the victim needs to be asked what specifically you need to do, to move on from the past. A second question subsequent to this is what could others do for the victim? By articulating what steps they need to undertake and what do they expect others to do, the victims are empowered to exercise positive control over them.

Role of Rituals: Traditional societies like ours are deeply rooted in practices of rituals which can play an important role in the process of conciliation. Rituals help in creating space for the victims to channel their negative emotions safely and open themselves up to new possibilities of life. These rituals may be traditional or cultural based. Use of songs, elegy, dance and poetry can play vital roles in this respect. Similarly sending a delegation by the offender to the victim’s family has proved to be very effective in reaching conciliation between the parties. Similarly other peculiar cultural or religious practices prevalent in a particular area can contribute towards building sustainable peace between the parties.

ADR in existing legislation

• Civil Procedure Code, Section 89-A,1908 (as amended in 2002), read with Order X Rule 1-A (deals with ADR methods)
• Small Claims & Minor Offences Courts Ordinance, 2002
• Local Government Ordinance, Sections 102-106, 2001
• Family Courts Act, Sections 10 & 12, 1964
• Code of Criminal Procedure, Chapter XXII, 1898 (summary trial provisions)
• Arbitration Act, 1940
• Constitution of Pakistan, 1973
• Articles 153–154 (Council of Common Interest)
• Article 156 (National Economic Council)
• Article 160 (National Finance Commission)
• Article 184 (original jurisdiction when federal or provincial governments are in dispute)

Disputes resolution/alternate dispute resolution

The complexities of rapidly changing geopolitical conditions intertwined with high population growth rates continue to be the focus of scholarly debates and have led to the development of new discourses and disciplines. With evolving human societies the level of sophistication of institutions has also been on the rise particularly in developed countries where they have served as the engines of development. Within institutions fundamental to modernization and development free and fair judiciary and rule of law constitute the driving force of other aspects of broad based development that reflects improvement in the lives of all people. However, evolving societies particularly those where the democratic process has been stunted have been seen to follow a less than ideal growth process and their institutional basis serve as weak edifices for sustainable development and progress.   

Growing complexities of human societies have brought about a great deal of sophistication in all institutions yet the responsive capacity of many institutions to problem solving within their mandate has fallen short of requirements. A classic example are the lengthy court procedures which sometimes serve as breeding grounds for conflict escalation and at all levels i.e. between groups and individuals, groups and states, individuals and individuals etc.

Obviously it would make the world community believe that the challenging increase in the disputes could not be resolved by courts only, hence world community is now bent upon resolving disputes through and by adopting alternate means and have given these pastures various names like conflict resolution, restorative justice and alternate disputes resolution etc. In Pakistan also besides the old Arbitrators Act of 1940, now we have to resolve our disputes through reconciliation process under family laws, as per section 89 -A of C.P.C under section 195-C of the customs Act 1969 etc and of course by adopting restorative justice system.

Restorative Justice System

The system addresses and resolves disputes through alternative means without punishing the offenders in the strict sense (legally speaking) but by compensating the aggrieved one. Punishment or apparent lack of it is not taken strictly as it is in the traditional criminal justice system but punishment includes means and methods to rehabilitate offenders. The aim is to make the offender realize the wrong doings committed and for the same to contribute to healing the feelings and loss of the offended one.

Constitution

Constitution is an inalienable right of individual and is the system for him/her to have access to justice (Art 4). Likewise article 25 confirms equality of citizens and refers to equal protection of law for all. Now the question arises why in our country and for that matter even in any civilized society people neither have equal protection of law nor can they exercise their inalienable right to have access to justice? Undoubtedly the simple answer is an open secret. The judicial system is so expensive, time consuming, complex that people would rather avoid it. People in the Pakistani society like other countries seek relief under alternative mechanisms. The Jirga and Panchayat systems, for instance, are customary practices that could potentially be the bastions of the restorative justice system ideal.

This system could however, be introduced through government institutions and processes such as the musalihat anjumans under the LGO 2001. Similarly mediation bodies such as the Musalihatee Committees established under the standing order of the IGP Khyber Pakhtunkhwa could adopt restorative justice system practices for sustainable peace through RJS driven tools and practices.

It is note-worthy that the promotion of local government institutions is also endorsed by Article 32 of the constitution. This falls under the purview of chapter 2 on principles of policy. Article 184 states, “disputes are likely to arise over question of jurisdiction between the Federal and Provincial Government or over the interpretation of the constitution or regarding the functions and powers of the different organs of the Government. It is essential to have powerful and impartial judiciary to decide such disputes and to keep the different organs of the state within the spheres pre-scribed for them by the constitution. The Supreme Court shall have original jurisdiction in any dispute between two or more Governments”.

Civil/Commercial

Mediation may be between two or more conflicting parties for settlement of disputes by resolution of conflict without pushing the parties into cumbersome legal process. If disputes cannot be resolved through mediation outside the court, then mediator must try to convince both the parties to resolve the same through court but under those provisions of laws which speaks for alternative means without recording evidence and arguments by lawyers.  

Having regard for the facts and circumstances of the case with the object of securing expeditious disposal of a case in or in relation to a suit, the court may adopt alternative dispute resolution methods with the consent of the parties, including mediation and conciliation. According to honorable judge of Lahore High Court i.e. reported matter in PLD 2007 Lahore page 581: such is now a universally accepted method being followed as a less expensive less time consuming, less cumbersome and ultimately a fruitful and beneficial mode commonly known as A.D.R. For further support in this regard one can take into consideration Order.10.Rule (1A) Sub_Rule3 which clearly states: The court may adopt with the consent of parties any alternative method of dispute resolution including mediation, conciliation or any such other means. Unnecessary protraction of proceedings in a judicial forum has to be avoided where the whole case can be decided without resort to minute details..PLD.1991 Karachi. Page 164: The concept of A.D.R gains more support by realization of superior courts for speedy disposal of matters P.L.D 1996 Lahore page 210. So overall survey of 89-A, in the light of given discussion and references clearly suggests that the Restorative Justice System is a need of our times.

Custom Laws

As laid down in Section 195-C of the Customs Act 1969, disputes and cases of hardship relating to liability of customs duty etc or relaxation of any time period for procedural or technical condition are to be resolved by the alternate Disputes Resolution Committee not withstanding any other provision of this Act or the rules made there under. If the cases were to be decided strictly in accordance with rules and regulation technicalities, courts were most competent and appropriate forums to take final decision. But in view of special features and merits of the case in realizing that it is not an ordinary case of contravention of legal provisions but a controversy of these technicalities, the honorable Peshawar High Court decided that disputes be resolved through the mechanism of A.D.R.C. Section 29 of the Customs Act, 1969. The cases are therefore to be settled and recommended for final approval of Federal Board of revenue keeping in view the tenets of natural justice, fairness and equity.

Banking Laws

In Pakistan commercial litigation mainly revolves around the Banking Laws. Under the law banks go for recovery of amount through banking courts and also by directly auctioning the property. The later is almost impossible and uncommon. These disputes take years to be finalized and sometimes defaulters have to go to prisons. However, if the parties are willing to pay then the court have discretionary powers to do the settlement between the parties but not without the consent of the banks.

The existing 2001 ordinance is silent on the issue. However, specific provisions are required to be added to the existing law besides having mediation clause in the agreement between the borrower and bank which should be resolved by bank manager or General Manager before knocking on the doors of court of law. Sec, 7 of banking law clearly mentions the power of banking court under sec 7 (a). In the exercise of its civil jurisdiction all the powers vested in a civil court under the code of civil procedure 1908; apparently application of 89.A is also not barred under the code of civil procedure 1908. However, so far the parties are unaware or reluctant otherwise to take relief under Section 89.A of C.P.C to settle the disputes outside the court in order to avoid the lengthy and comparatively expensive proceedings which resulted in pending of matters before the banking court for years. Indeed financial institutions, borrowers, other litigants and lawyers should be made conscious of the importance of Sec 89-A of C.P.C. It would be worthwhile to mention here that banking court has the jurisdiction though not under the banking law directly but under the civil procedure code especially through powers it assumes under Order 20 Rule 11, Order 24 Rule 3 read with Section 151 of C.P.C to make settlements between the parties.

Criminal Matters

Out of 511 sections of Pakistan Penal Code, there are only 61 offences which are easily compoundable under Section 345 Cr.P.C and one can go for compromise easily in these types of offences. However, honorable superior courts even in non compoundable cases found the possibilities of compromises (for ready references: 1997 S.C.M.R 1411 M.L.d 1995 page 1826 and 2004 P.cr.L.J page 490).

The Conciliation Courts Ordinance 1961

Conciliation means voluntary settlement of a dispute. The judicial forums constituted under this ordinance are called Conciliation Courts as these courts are constituted on the application of a party to a dispute and two representatives have to be nominated by each of the parties to form the court which shall be presided over either by the chairman of the Union Council or member representing the ward. Object of this ordinance is that these courts may dispose of petty criminal and some civil cases and thus justice may be taken to the homes of litigant. The criminal matters which could be dealt by conciliation courts include mainly compoundable offenses. Although the law was promulgated for whole of Pakistan but its implications seem limited only to the panchayat system of Punjab. No doubt the law was introduced in early decades after Pakistan cam into being and seems to be effective legislation on the system of conciliations but shows no practical implementation at least in the province of Khyber Pakhtunkhwa.

Labor Laws

Concept of dispute resolution and conciliation has always remained a part of laws relating to our laborers in Pakistan. Earlier it was covered by industrial Relation Ordinance of 1969; however this was repealed by 2002 Ordinance and now 2008. Relevant provisions in this regard could be cited such as Section 25 of the ordinance which talks about negotiations relating to difference and disputes, Sec 26 meant for conciliation through government appointed conciliators if not resolved through negotiation; while matters could be referred to arbitrators under sec 30 if conciliation didn’t work. Those who are of the view that Restorative Justice System can resolve problems through their mediations centers could also help to teach and train conciliators for the given purposes.

Family Disputes: Muslim Family Laws Ordinance 1961

Under Sec 2 of the aforesaid ordinance not only the concept of arbitration council is explained but also its purpose. Section 7 of the MFL ordinance 1961 makes the aim of Section 2 obvious. Under Section 7, notice of talaq is required to be given to chairman and a copy to wife as well. The deviation from the aforesaid procedure imposes punishment under Sec 7{2}. While under section 7{4} with in thirty days of the notice under sub-section (1) the chairman shall constitute an arbitration council for the purpose of bringing about reconciliation between the parties and the Arbitration council shall take all steps necessary to conclude such reconciliation between the parties.

The Honourable High Court in reported Judgment of 1988 C.L.C. page 467 upheld: Chairman of Arbitration council as empowered merely to bring about reconciliation between parties. While section 10 of Family Court Act, 1964 says: “At the pre-trial stage the court shall ascertain the points at issue between the parties and attempt to affect a compromise or reconciliation between the parties, if this be possible”. A family judge is required to make attempts of reconciliation between the parties twice, before the commencement of presentation of evidence and after the close thereof. Sometimes, it might become necessary even during the conciliation proceeding , when positive assertion are being made by the parties ,to one or the other under oath with a view to sort out their differences or to seek certain clarification.

Those who have strong commitment to the concept of reconciliation and believe in settlement of dispute could make arbitration council more effective to resolve the issues easily without going through arduous, lengthy and expensive process of the court.

The Musalihati Committees, the Role of Police and Community

The number of crimes and pending matters for the police are much higher in Khyber Pakhtunkhwa vis-a-vis other provinces and population of the province itself. Pukhtoon social and cultural fabric has disintegrated due to the perpetual Afghan war and imported violent cultures from other societies. Our society needs rehabilitation, reformation and restoration to its status as culture of peace and co-existence. The focus on restorative justice as a mechanism of justice dispensation will not only help weave the community in peaceful form of coexistence it will also facilitate the law enforcement authorities (police and judicial system) to focus on larger issues such as militancy and radicalization of susceptible and vulnerable segments of the society. If justice is dispensed efficiently, fairly and in line with the cultural context, communities are likely to become more peaceful.

Theoretical Perspective

In fact every society decides its own methods in order to maintain and establish social justice. Justice can be bifurcated into four categories: punitive, permissive, neglectful and restorative. Of these the Restorative approach confronts and disapproves wrong doing and at the same time affirms the intrinsic worth of the offender in the process of justice dispensations which is restorative in nature. Its main essence is “confrontational and collaborative” problem solving. This provides an opportunity for those who have been most affected by an incident. The relevant stakeholders come together to share their views and feelings. This provides the offender an opportunity to make amends. The restorative approach engages the offenders, the victims and all the relevant parties involving them to participate in the process of healing and damage control. In other words, this is co-operative approach.

The Musalihati committees were constituted to extend maximum relief to the general public by resolving various disputes outside the courts for speedy and effective justice and hence saving the victims from heavy financial burden and mental anguish commonly associated with litigation. At the same time this approach also reduces the work load not only for the judiciary but on all the branches of criminal justice system. The scope of work under the system extends to resolve land disputes, money related disputes, police complaints, domestic disputes and other civil related cases. The introduction of idea has given tremendous results in Hazara district. Certainly our police, community and civil society have contributed a lot by establishing these sorts of committees. However, what is needed is awareness of the basic philosophy of restorative justice system and this can only be possible through a focused effort by real jurists of the subject to spread word to the community, the civil society and police to resolve the issues in the essence of the restorative justice system. It is imperative that actual demands of the system i.e. to keep the balance between the rights and duties of both the offenders and aggrieved parties central are properly understood by all..

JIRGA LAWS

Pukhtoon society is basically tribal society having its own values and norms. Pukhtoons prefer to resolve their disputes through negotiations and mediations – commonly through Jirga. This concept of Jirga is still in practice and and its scope of work mainly includes the resolution of tribal disputes through interventions of elders. The Frontier Crimes Regulation 1901 was introduced by the British to control and govern the proceedings of Jirga. The British were shrewd enough to see the power and authority of the Jirga as well as the seeming impenetrability of the Pukhtoon societies through regular modes of governance. They co-opted the institution, in some cases through introduction of hierarchical power structures of governance (nawabs, sardars, etc.).

While the Jirga in the present day continues to function as a local mechanism of governance, there have apparently been attempts to downplay its significance especially  Human rights activists and upholders alike have been pointing out the negative cultural practices in Jirga and are less supportive of its cause. In addition socio-economic changes discussed in greater detail above and the rising militancy and radicalization in tribal society have been dampening the influence and authority of Jirga as governance structures especially as a result of the Taliban and Al-Qaeda threat.

At the same time elders and community members that adhere to their indigenous form of justice mechanisms are not willing to accept the legal system of settled areas. However they don’t have an option to fill the vacuum which might be left by old Jirga System. In this regard awareness building of Restorative Justice System and the gradual and steady introduction of human rights tools and instruments in the system offers great potential for the revival of this age old system. Introduction of the restorative justice system as noted will highly benefit  8 million people of tribal areas.

Arbitration

The concept of Arbitration is also customary but it’s not so deep rooted as Jirga in our society. However it has also taken codified protection after the introduction of arbitration act, 1940. Mentioning of any clause regarding arbitration in any agreement automatically ousts jurisdiction of any court to entertain disputes resulting on the basis of the same. Number of arbitrators may be one or more depending upon mentioning the same in any given agreement or as per version of courts under section 8, 9 and 10 which refers to number of appointment of arbitrators and umpires. Section 11 reveals how and when court can remove arbitrators or umpire in certain circumstances

Award which has been defined under section 2 (b), means an arbitration award while under section 26.A the arbitrator shall state in the award the reasons for the award in sufficient details to enable the court to consider, any question of Law arising out of the award. Sometimes if the parties and any other court feel that certain matter of the suit they are interested to refer to the arbitration, they may at any time before judgment is pronounced be able to apply in writing to the court for an order of reference. Order of the arbitration courts are appealable U/S 39 of Arb .Act 1940. In Pakistan especially and in international forums the business communities prefer to go for arbitrations rather than to go knocking at the courts of law for civil suits etc. For this purpose the contractors of construction companies have to go under FIDIC in order to resolve their disputes through arbitrators. Though the arbitration process is less depressive then ordinary courts procedures even then it is in need of improvement in the light of more realistic trends of restorative justice system. Indeed arbitration process can be modified and be made more natural and easier if transformed/converted into mediation process to encourage and convince the parties in arbitration to settle their disputes outside the court through mediation.

Mediation centers on the lines of those in Europe and USA (about 500 in Europe and 300 in USA) need to be introduced in Pakistan as well. Organizations committed to the cause have to make the business community aware of the need to come forward for resolving their disputes through the mediations centers. Legislative bodies and justice departments should also take initiatives to give legal coverage, protection to mediation process and centers through proper legislations.

Musalieheen/Conciliators under Khyber Pukhthoon-Khaw Pakistan Local Govt Ordinance 2001

Under this ordinance, a jirga is to be constituted in Union council. Civil or criminal court may refer the case to the Jirga for settlement of disputes, whether criminal or civil. The Jirga then conducts the proceedings amicably between the parties and submits its report to the referee court. The union nazims and insaaf committees and Musalieheen (conciliators) also have powers to resolve the disputes whether or not the proceedings in the courts have been instituted. The parties of the disputes can request for appointment of a person other than l panel. Relevant provisions in this regard could be cited as Section 102, 103, 104, 105 and 106 under the aforesaid ordinance. This could be one of the best opportunity to strengthen mechanisms that are intended to resolve issues outside the court by the community members namely conciliators-mediators and arbitrators. But again the real problem could be solved if these types of mediators-conciliators are able to resolve the disputes as per the requirement of restorative justice system which not only recommend the compensation for the affected one but also emphasizes restoration of the offender in the community as an acceptable dignified member of society.From the overall survey of the subject it can be suggested that since the independence of the country there was concept of resolving the disputes through mediation, conciliation and arbitration. However, it didn’t serve the purposes so the back log and number of pending matters at the level of police and courts became staggeringly high. It was mainly due to the increasing population and lengthy legal process which made the subject fed up of existing legal system hence people trying to find some other means where they could seek and have remedy easily. In fact it has given birth to vacuum as far as dispensation of justice is concerned.The Laws and Acts which have already been discussed earlier might be of help to indemnify the people but not totally. We therefore need to have cheaper, easier, rehabilitative and consoling system which would compensate the aggrieved one and purify the personality of offenders so that the process of lengthy conflicts, enmities and distortion of society can be stopped or minimized. Keeping in mind the ground realities and introduction of new concepts of Musalihati jirgas and committees through police standing order and local government ordinance 2001 there is significant scope for these to serve the required purpose of reducing and avoiding conflicts in order to have civilized society characterized by peace and security.