On November 18, 2016 an ADR Bill was tabled in the National Assembly by Zahid Hamid, Minister for Law and Justice and Climate Change. The Bill on first look seems like a home rum but unfortunately it is not much different, in essence, to the already existing Section 89-A of the Civil Procedure Code 1908. Section 3(1)(a) of the said Bill states that if the parties do not agree for ADR then the dispute shall not be referred for ADR. I fail to understand how different is this from the already existing Section 89-A of the CPC which states that consent of the parties is required before a dispute can be referred for ADR. This still does not make mediation mandatory, which is the need of the hour in Pakistan. The whole exercise of introducing a long Bill may just simply be futile.
As a professional mediator, another issue, which I see with the Bill is that the court may frame issues with the consent of the parties for facilitating the dispute. In mediation an agenda is made by the parties with the help of the mediator which may be within or beyond the prayers and claims made by the parties in the court. However, the Court, in framing issues stays within the parameters of the claims and prayers of the parties. This may, unless flexibility is allowed, prevent the mediation process from being a success.
The Bill also falls short in elaborating the qualifications of a mediator. It does not make for a mediator to be accredited after undergoing some sort of professional training. It simply mentions "having such qualifications and experience as may be prescribed". It is only hoped that the person(s) prescribing such qualifications and experience are aware of the international standards of mediation training. As being a person who has trained lawyers, judges, bureaucrats, law enforcement officials, corporate sector, chartered accountants etc, I know it for a fact that just because a person is a senior professional it does not mean that he is a good mediator or is even aware of the principles of mediation.
The Bill allows for ADR through Panchayats, Jirgas, etc, however, it should be stressed that while labels are not important, there has to be capacity building. Mediation requires specific techniques that come in handy in settling a dispute. A mediator should even know the techniques to balance power at the mediation table. Certain principles need to be laid down to define how a Panchayat or Jirga will function. In my talks with people belonging to different regions of the country where Jirga is prevalent, I have come to the conclusion that there is no strict definition or rather mechanism which Jirga follows. In some areas Jirga functions as a conciliatory or mediatory body which in others it is strictly arbitrary. If this Bill then makes Jirgaa legal part of the ADR process, what then shall happen to an outrageous decision by the Jirga where a girl is set on fire for helping her friend escape the village to marry a person of her choice?