Use of Alternate Dispute Resolution (ADR) methods is considered to be
an effective choice for conflict resolution as compared to litigation
or any other competitive means of conflict resolution.
To what extent the ADR methods can be helpful for reducing different types of conflicts in our culture (Pakistani culture); and how can we increase the public awareness in this regard? Discuss and elaborate in a logical way.
Solution:
Alternative dispute resolution (ADR) (also known as external dispute resolution in some countries, such as Australia) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties’ cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called “compulsory” mediation; attendance that is, not settlement at mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of the use of mediation to settle disputes
To what extent the ADR methods can be helpful for reducing different types of conflicts in our culture (Pakistani culture); and how can we increase the public awareness in this regard? Discuss and elaborate in a logical way.
Solution:
Alternative dispute resolution (ADR) (also known as external dispute resolution in some countries, such as Australia) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties’ cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called “compulsory” mediation; attendance that is, not settlement at mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of the use of mediation to settle disputes
Types and features
ADR is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation. See conciliation for further details.) ADR can be used alongside existing legal systems such as sharia courts within common law jurisdictions such as the UK.Benefits
ADR has been both; increasingly used alongside, and integrated formally, into legal systems internationally in order to capitalise on the typical advantages of ADR over litigation:- Suitability for multi-party disputes
- Flexibility of procedure – the process is determined and controlled by the parties to the dispute
- Lower costs
- Less complexity (“less is more”)
- Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate
- Likelihood and speed of settlements
- Practical solutions tailored to parties’ interests and needs (not rights and wants,as they may perceive them)
- Durability of agreements
- Confidentiality
- The preservation of relationships; and the preservation of reputations
Pakistan
The relevant laws (or particular provisions) dealing with the ADR are summarised as under:- S.89-A of the Civil Procedure Code, 1908 (as amended in 2002) read with Order X Rule 1-A (deals with alternative dispute resolution methods).
- The Small Claims and Minor Offences Courts Ordinance, 2002.
- Sections 102–106 of the Local Government Ordinance, 2001.
- Sections 10 and 12 of the Family Courts Act, 1964.
- Chapter XXII of the Code of Criminal Procedure, 1898 (summary trial provisions).
- The Arbitration Act, 1940.
- Articles 153–154 of the Constitution of Pakistan, 1973 (Council of Common Interest)
- Article 156 of the Constitution of Pakistan, 1973 (National Economic Council)
- Article 160 of the Constitution of Pakistan, 1973 (National Finance Commission)
- Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when federal or provincial governments are at dispute with one another)
- Arbitration (International Investment Disputes) Act, 2011
- Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011
