ISLAMABAD: The Supreme Court recommended promoting efficiency in access to justice, saying Pakistan should become a signatory to the “Singapore Convention on Mediation.”

The judgment authored by Justice Syed Mansoor Ali Shah said the mediation will not only reduce the alarming backlog statistics through enhancing faster access to justice but will also serve as a turning point towards a comprehensive and profound transformation of the legal and judicial system.

“Mediation offers the best chance of a solution where both parties leave with dignity and satisfaction, as opposed to the all-or-nothing results of litigation,” it added.

Don’t move every case to constitutional benches: Justice Mansoor

Justice Mansoor underlined that there are around 2.22 million (2,221,512) cases pending before all the courts in Pakistan. Out of these, 0.35 million (347,173) cases are pending in the Constitutional Courts (Supreme Court of Pakistan and the High Courts) while the bulk of the pendency is in the District Courts which constitutes 82 per cent of these cases, translating into a backlog of 1.82 million (1,815,783) cases.

He proposed that this voluminous and chronic pendency necessitates exploration of new and out-of-box dispute resolution solutions, saying ADR is; therefore, the way forward.

Justice Mansoor wrote that the value of mediation as a method of amicably resolving disputes has been recognised in various international legal instruments including the United Nations Convention on International Settlement Agreements Resulting from Mediation, known as, the “Singapore Convention on Mediation.”

The convention provides a uniform and efficient framework for the recognition and enforcement of mediated settlement agreements that resolve international, commercial disputes – akin to the framework that the 1958 New York Convention provides for arbitral awards.

The judgment said that to date, the Convention has 57 signatories, while only 12 states have ratified the same. “To promote efficiency and align with the principle that ‘in the future, it is likely that the traditional trial will be the exception rather than the rule’ it is recommended that Pakistan becomes a signatory to the Convention.”

A three-judge bench headed by Justice Syed Mansoor Ali Shah and comprising Justice Ayesha A Malik and Justice Aqeel Ahmed Abbasi announced the judgment on an appeal against the Lahore High Court judgment dated 06.01.2024.

The brief facts of the case are that M/s Mughals Pakistan (Pvt) Limited (appellant), a private limited construction company was engaged by Employees Old Age Benefits Institution and its wholly owned subsidiary, M/s Pakistan Real Estate Investment and Management Company (Pvt) Ltd, (respondents) for a construction project.

Following the initiation of the project, disputes arose between the appellant and the respondents regarding the extension of time and the encashment of Mobilization Advance Guarantees. Subsequently, the appellant filed petitions under Section 20 of the Arbitration Act, 1940 along with an application under Section 41 read along with Second Schedule to the Act, seeking injunctive relief, as well as, invoking the remedy of arbitration before the learned Civil Court, Lahore.

Thereafter, a two-member arbitral tribunal was constituted which, after hearing both the parties unanimously passed the arbitral award which was made the Rule of Court by the learned Civil Court vide its judgment and decree dated 18.05.2022, as provided under Sections 14 and 17 of the Act. An appeal was filed against the said judgment by the respondents before the Lahore High Court, Lahore which was allowed vide judgment dated 06.01.2024 and the unanimous arbitral award was rendered a nullity.

Hence, the instant appeal. During the hearing, the court suggested the mediation of the dispute between the parties and gave time to seek instructions and explore the possibility of an out of court settlement. The respondents, initially expressing unease with out of court settlement or alternative dispute resolution (ADR), finally agreed to resolve their dispute through mediation in both the appeals.

Mediation is evolving as a powerful mechanism for conflict resolution, bridging divides with creativity and fostering harmonious solutions. This approach aligns with a broader understanding of justice as being not only about achieving outcomes but also about the process itself being fair, efficient, and accessible.

Traditional court system is adversarial and often resource-intensive, leading to delays and alienation of marginalized groups.

Mediation embodies a collaborative model of justice that prioritizes dialogue and empowerment, ensuring parties are active participants in resolving their disputes.

Copyright Business Recorder, 2024