Abstract

The perpetual reverberating maxim “Justice delayed is justice denied” has fragmentary implementation as mere fragment “justice delayed” is operating in Pakistan due to obstacles like intricate and protracted judicial and procedural processes in legal system of Pakistan that resultantly not only debars dispensation of expeditious justice but also makes the justice exorbitantly expensive. The paper by accentuating the causes of obstructive delays in justice demonstrates Alternative Dispute Resolution as a panacea for retrieval of inexpensive and expeditious justice in Pakistan. This paper explores that the existing laws of Pakistan on Alternative Dispute Resolution have slightest implementation; hence this paper is an endeavors to build judicious cognizance of Pakistani legal system for Alternative Dispute Resolution as the proper execution of Alternative Dispute Resolution techniques can change the fate of delayed justice in Pakistan.

Key Words

Delayed Justice, Alternative Dispute Resolution, Arbitration, Negotiation, Mediation

Introduction

Justice is an abstract so is the conscience of the entire humankind. Justice is an apparatus of the law due to which each human acquires his natural and legal rights. It is a focal point of ethics and legal philosophy. “Legal injustice” is not unusual in courts of justice however; miscarriage of justice by delaying its process is a hurdle for dispensation of expeditious justice. In Pakistan there is a trend of denying justice by delaying it due to the pendency of millions of cases in courts of Pakistan. In this way Pakistani Legal system is ineffectual in protecting the codes and canons of everlasting justice. Courts are administrators for dispensation of expeditious justice that is why the public has reliance and confidence on courts. The situation in Pakistan is actually different as the burden of cases on Pakistani courts had ruined the public trust on courts and stability of justice in Pakistan. Therefore this paper elucidates the main causes of delaying justice in Pakistan. It confers that judicial and procedural delays including “complex and lengthy procedures, corruption of judges, transfer of cases and judges to other courts, unnecessary adjournment and no attendance of proper or necessary parties” made Pakistan a justice thirsty country.

Different states of the world are now resolving their disputes by Alternative Dispute Resolution (hereinafter “ADR”) to cope with the delaying justice. The societal, political and fiscal connotations had acquiescently or clandestinely made a room for ADR in particular manner as ADR being informal, expeditious and inexpensive is now a burning subject matter in worldwide legal systems’ debates. The prevailing scenario of delaying justice in Pakistan calls for a way or a remedy for retrieval of expeditious justice and to accomplish the goal of expeditious justice in Pakistan. This paper discusses the basic concept of ADR along with its various modes including “negotiation, mediation and arbitration”. This paper further explores that the existing laws on ADR in Pakistan; however due to a putrid legal system and less implementation had led the process of ADR undemanding. 




Delayed Justice in Pakistan 

Justice is a brilliance on which the structure of a society is entrenched. It is enlightenment for propagation and recognition of rights and obligations (Rawls 1971), as well as it is a source for distribution of these rights and obligations by the social institutions among the society (Rawls, 1999). Supreme Court of Pakistan (hereinafter “SCP”) in Askar Ali v The State (1959), while exemplifying the justice divulged that “Justice should not only be done but should be manifestly seen to be done.” Justice in pursuant to the “Rule of Law” is sine qua non for an Egalitarian social order as Egalitarian social order describes “to each the same, or to each according to some distinctive particularities (Perelman 1963).” Society cannot survive suitably in absence of justice (Iqbal, 2006). Scarcity of justice in a state or state with having no administration and dispensation of justice is called a pseudo state (Chaudhary, 2012)  as justice plays a vital role in regulation of the societal harmony and resolution of conflicts  and endures the peace, ensures security and good governance as well as it empowers implementation of rights (Armytage, L. 2012).

The implementation and preservation of justice in a society is a function of the courts. However, the Courts remained inefficacious in dispensation expeditious of justice (Krishnan, 2011). The reason for such failure is “delayed justice.” Delaying justice not only is the reason for the frustration of the parties of suits but it also hinders the societal and commercial developments of the society by becoming an impediment to the foreign investments in state economy. Delaying justice also affects the trade relationships of state and independent business of society with multinational companies. 

“Delayed justice” signifies the superfluous and unreasonable time period consumed in the disposition of lawsuit that is prejudicing the justice (Balakrishnan, 2007). Instant and prompt resolution of the disputes is basic essential of justice (Barry, 1998). The essence of an effectual legal system is well-timed and judicious resolution of dispute while the prolonged delays in resolution of cases threaten the interests of parties of suit (Moyer, 2008).  So it is obligatory to all countries including Pakistan to dispense expeditious justice to people (Sherwani 2006) as the Constitution of Pakistan, 1973 ensures the expeditious justice under as the expeditious justice is also given a “constitutional guarantee.” Article 37(d) that says “ensure inexpensive and expeditious justice.”

In Syed Farrukh Hussain Shamsi v Lahore High Court 2018, the court describes the duty of judge in dispensation of expeditious justice and states:

“Judges are imbued with a high sense of duty and responsibility in the discharge of their obligation to promptly administer justice. They have to strictly 'adhere to the rule of speedy disposition of cases as delay in disposal is the major culprit in the erosion of public faith and confidence in judicial system. The concept of inefficiency used in common parlance and the one attribute to the judicial officers is way apart. As discussed above a judicial officer is invested with a noble duty to decide the rights of public at large; ally delay on his part in dispensation of justice will put the reputation of the judiciary at stake. Each time when delay is occurred in disposition of cases their stature as a judicial officer diminishes and the reputation of the entire judiciary, which is amongst one of the pillars of the state, is tarnished.”

However, courts cannot give verdict of a case instantaneous as a court needs an adequate and reasonable period of time for deciding the matter. For giving a just decision it is mandatory to conduct inquiries, to gather and scrutinize the evidences, to frame the issue, to settle all the disputes and then in the end the court concludes the case with a rational verdict (Anderson, 2006). So it is also necessary to clarify the impression of delay for differentiating the unjustifiable or unreasoned delay and essential procedural observational delay (Martin 1981). 

There should be balance and applicability of two maxims that are “Justice delayed is justice denied” and “Justice hurried is justice buried” (Muhammad, 2016). In Mst. Kishwar Bibi v. Mst. Fazal Bibi 2004, it is described that the delay of justice is deny of justice as well as some time hasted justice also does not meet criteria of proper justice. Court being the administrator for the dispensation of proper justice must maintain the balance in this way the dispute would not be decreed with unreasonable delay or cannot be verdict in haste. In Syed Saeed Muhammad Shah v The State 1993, Supreme Court of Pakistan stated that “There is perceptible difference between speed and haste. Object of speed can be achieved even after observing all legal requirements without indulging in haste. "Justice delayed is justice denied" and "justice hurried is justice buried", so balance is to be struck between the two principles." Though both circumstances hurried and delayed justice contravene the fundamental principles of law but Pakistani Courts never propose the reasonable timeframe for deciding the case even Courts never propose how balance between the hurried and delayed justice can be maintained while having backlog of cases. 

However, in Pakistan the citizenry are tolerating the numerous hitches in administration of justice comprising the manifestation of inauspicious laws, agitation, corruption, criminality, invectives, dogmatic political and sectarian fights, extortion, exploitation of the aggrieved and weak party and delayed justice.  Justice is necessity however; implementation of justice is bearing several worldwide challenges. Overloaded dockets, delays and postponements and legal charges are substantial hurdles in delay of justice in the entire world. It is very essential to indicate that delay in resolution of disputes is not only a dilemma in Pakistan but the whole world is facing it however in Pakistan situation is alarming (Bilal & Farqaleet, 2021).

In Pakistani Courts enormous numbers of almost 2.2 million unsettled lawsuits are pending. Statement of cases pending in January 2021 illustrated that in the Superior Courts of Pakistan number of pending suits are (378216) as in Supreme Court of Pakistan (46695), Federal Shariat Court (178), Lahore High Court (188176), Sindh High Court (81684), Peshawar High Court (41042), Bulochistan High Court (4194), and in Islamabad High Court (16247) cases are pending. While cases pending in January 2021 in the District Judiciary of Pakistan are (1783826) including District Judiciary Punjab (1372879), District Judiciary Sindh (115815), District Judiciary KPK (230869), District Judiciary Balochistan (16034), and District Judiciary Islamabad (48229). The grand total numbers of pending cases in Pakistani judiciaries are (2162042) < Statement of cases Pending in Pakistan. http://ljcp.gov.pk/nljcp/assets/dist/news_pdf/courts.pdf>. 

Approximately, Pakistani Courts if effectively operate or function then the resolution of these pending backlog of lawsuits will take 15 years but on a notable condition that “registration and institution of new lawsuits will be barred” during that time (Akhtar 2008). The civil and criminal justice system of Pakistan is suffering the huge stock of pending cases though “civil justice” is more prevalent and struck in the situation. This situation is gradually worsening in Pakistan as the growing rate of pending cases is becoming a threat to the dispensation of justice (Nawaz, 2004). However, In Mrs. Nasima Yousuf v Tehseen Abass Gilgiti, the court discussed the matter of delaying justice and stated:  

“Court must always act in such a manner so that every single decision thereof should satisfy its literal meaning i.e. 'a place where justice is done/dispensed'. Litigants should never be given a 'disposal of their approaches' but a 'decision by a Court of law'. Court cannot, legally and morally, take excuse of 'rush of work'. Not a single decision of a court of law should reflect that it was not a 'decision' but an attempt to earn 'numbers/units' or to lessen the number of cases entrusted to it for disposal 'according to law'.”

After having pendency of millions of cases on the Pakistani Courts the question arises on the judicial system of Pakistan. How this judicial or legal system is dispensing expeditious justice to the public. Though in Mrs. Nasima Yousuf case the court stated that courts cannot make excuses of rush of cases although having rush of work in court. Unreasonable adjournments remain a single option for a judge for harmonizing the rush of cases and maintaining the quality of decisions.

Usually a civil case needs 25 years for its resolution and additional 5 years are required for the execution of the decree. This also deciphers that unreasonable adjournments is the fate of these cases; in contrast it cannot be imagined that court for perusal of evidence and records takes 25 years.

While coming to courts in Pakistan every aggrieved party faces a misadventure of spending numerous years in the lower courts for justice. If the appeal has been filed against the decision of lower court then the same party has to spend additional years in superior courts. This troublesome expedition costs much money and uncountable precious time in courts of law for obtaining justice. A study has explained that in Pakistani Courts usually parties to lawsuit makes the frequent visits to the courts and on an average parties makes 72 visits of courts for concluding his lawsuit with an average cost of 0.27 Million spent by that aggrieved party per lawsuit.

Causes of Delayed Justice in Pakistan

Judicial Delays 

There are several judicial obstacles instigating delay in the dispensation of justice. Significantly these obstacles include first and foremost unreasonable and unnecessary adjournments, transfers of lawsuits and judges from one court to another, corruption of judges and judicial officials, and no attendance of proper or necessary parties and their solicitors. In National Accountability Bureau v Messrs Hudaibya Paper Mills Limited 2018, the court stated that the protracted proceeding has an enormous effect on the suit of prosecution and defence as well. It is the responsibility of the court to give expeditious decisions when the parties produce unreasonable witnesses or seek unjustifiably adjournments. SCP further stated that for administration of justice expeditious proceedings are necessarily required while “protracted proceedings” are mockery of law, abuse to justice and court’s process. 

Order XVII Rule 1 of the Civil Procedure Code, 1908 authorizes judges with a discretionary power that in case when the “suf?cient cause is shown” the court has “power to grant the adjournment” to the parties of suit. Order XVII Rule 1 of the Civil Procedure Code reads as follows: “The court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.” It is unmanageable to entirely disregard the adjournments however the adjournment can be decreased if it would be given when it is actually or necessarily needed. In Pakistan solicitors of parties used to get adjournments on frivolous grounds that is a significant cause of delayed justice. 

Pakistani judicial system is riddled with corruption as at the stage of lower courts the parties of suit have to give “bribe” to the staff of the court for forwarding or halting anyone’s lawsuit (NAB, 2002). The judges of Pakistan are caught in corruption cases like in Ghulam Mustafa Shehzad v Lahore High Court, a Pakistani judge left his office as he used to get unlawful grati?cation, and bribes as well as he had a very corrupt repute (Ghulam, 2007). Similarly, in Asif Ali Zardari v The State, the judge while deciding the case found partial and unjust against one of the party in this way the suit was set aside.  There is also a concept that the judges used to get bribes from the parties of suits and solicitors for granting willed judgments or adjournments. Judges of Pakistan used to get bribe to frustrate the opposite parties (UN, 2004).

The transfer or rotation of judges from one court to another is also a problem in Pakistan. In this context it is easy to say one who had listened and witnessed all the testimonies and evidence would not give the verdicts. The new transferred judges have to repeat few or much procedural requirements that have been already contented (Alam, 2010). Usually in Pakistan “judges were often transferred without being replaced (Khan, 2003).”

The attendance of proper and necessary parties of suit is essential to initialize the proceedings of court except one of the parties is confirmed as an “ex-parte” by the judge or court of law. However, the Supreme Court of Pakistan had a very inconsistent attitude towards the “ex-parte decision.” In Idress v. Shamim Akhtar and Rehmat Ali v.Javed, SCP justified and accepted the orders delivered by the courts ex-parte while on same grounds same SCP in Ashiq Hussain v. Province of Punjab and Nouroz Khan v. Haji Qadoor, has set aside the ex-parte orders on a reason that the party of lawsuit was not given an appropriate chance of hearing and SCP stated that for the dispensation of substantial justice the technicalities of law should have to be avoided. These SCP's decisions a bit ambiguous and are also inconsistent.

However, the statutory stance about the ex parte decisions is very much clear. Order IX Rule 6 of The Civil Procedure Code says: “When summons duly served- if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.” If on the competent grounds the ex parte verdicts are made by the subordinate courts then such verdicts should be acceptable in superior courts and when no ambiguity lies in ex parte verdicts of subordinate courts, superior courts should not waste the time in verifying and rechecking the facts of these ex parte verdicts.  Generally the judges of courts being over vigilant for being alleged of “disavowal of justice” and grant adjournments over determining the suit expeditiously. The incompetence of judges in giving competent ex-parte act against unconcerned complainants leads to postponements of proceedings and delay in justice (Macnair, 2004).




Procedural Delays 

For the dispensation of expeditious justice and redressal of the grievances of aggrieved party simple and short procedure are very necessary. In contrary to it the long and lengthy procedural complexity causes the delay in determination of reasonable decision of a suit. Technicalities in disposition of a lawsuit and resolution of dispute have a substantial role but sometime these technicalities become the cause delayed justice. In Pakistan inappropriate and abstruse procedural technicalities exploit the justice by delaying it as due to it lawsuits are continued almost for indefinite span of time (Lone, 2011).

In Pakistan the procedural laws are outdated, complex, and cumbrous and are enforced from “colonial era” and these procedures prolong the litigations due to complicated and convoluted procedural paths. The complicated procedure gives birth to the corrupt attitude because when the solicitors want to frustrate the party he struck that party into procedural complications. In courts of law the time is usually lost in “suf?ciency of notice, amendments of plaint and in jurisdictional conflicts” even cases become time barred due such conflicts. Furthermore, the language of Law is also a problem for a common man as extremely technical and literal terminology used in different laws creates problems for a common man (Aggarwal, 1978).

In Pakistan various “frivolous interlocutory applications” are forwarded in court in the light of various enactments of law and the reason behind forwarding these frivolous applications is to agitate the original proceeding of a suit. These applications change the structure of case and become the cause for delay of justice. Moreover, in Pakistan “rights of appeal against interim and interlocutory orders” are usually used to abuse the justice and to delay the decision of the case.

In Pakistan Parties of suit are allowed to make amendments in the pleadings at any stage of proceedings of suit. In Mst. Ghulam Bibi v Sarsa Khan 1985 it is described that the court on its own discretion can or cannot pass the application of the amendment in plaint. But when the court comes to know that amendment is necessary then it is obligatory for the court to permit the application of amendment. 

However the permission of the numerous modifications and amendments in the plaints during the proceeding of case is the foremost cause of delayed justice in Pakistan (Alam, 2010). Nearly Eighty Percent of application forwarded in the court for the amendment of pleadings has the main purpose of delaying the reasonable decision of the suit by abusing the justice while the fifteen percent of the applications for amendment of pleadings are careless or incompetently forwarded while only five percent are usually genuine applications.

Alternative Dispute Resolution and Expeditious Justice

ADR is a technique for the resolution of controversies, differences, disagreements and disputes between the parties harmoniously (Ware, 2001). ADR is considered as the prompt and cheap method for resolution of dispute and dispensation of Justice as this technique consumes very little time and is more definite and decisive than litigation. Some of main benefits of ADR are that this method is expeditious, provides imperial experts, have informality and flexibility in procedures, ensures confidentiality, have conclusiveness, decisiveness, and diversity, also recognizes the needs of the conflicting parties and try to ensure win-win position for both conflicting parties, involves the conflicting parties in constructing imaginative and reasonable solutions, saves public expenditure and time and energy, maintains the business and personal relationships of parties, decrease court dockets, lessens burden of cases on courts, is more effectual legal systems and provides expeditious justice (Fiadjoe, 2004). 

In Waheed Brothers v Messrs Izhar 2002, it is discussed that ADR is a diverse technique having various altered stages for resolution of the disputes than the courts. The conflicting parties that attempt to resolve their matter by ADR choose a neutral, impartial and unbiased third party as an umpire and the selection of an umpire is done by mutual consent of both conflicting parties. The most acceptable characteristic of ADR is that it needs no technicalities for the dispute resolution as utilized by the courts of law that causes delayed justice in courts.

There is no limitation on contracting parties in independently performing or regulating the terms and conditions of contracts. Both the parties agreed on the terms of any contract after considering their interests in it. In Excelsior Cotton Company v Trading Corporation of Pakistan 2003, it is deliberated that if in future any disputes and disharmonies occur then the contracting parties adopt some methods which are to be inexpensive and speedy instead of costly and sluggish processes. In this context the ADR is a best preference for these parties as delayed Justice and delayed litigation is in fact a universal element of the judiciary. ADR is an expeditious method provided by every jurisdiction and legal system.

ADR is the only method for resolution of commercial disputes expeditiously and inexpensively. These disputes involve the composite fiscal issues like financial transaction between the financer, banker and different merchants as these disputes involves the share of the economy of a state so that in Ali Muhammad v Bashir Ahmad 1981,  it is discussed that usually companies having vast business cannot brother the delaying justice so they never wanted to recourse their disputes through sluggish and lengthy court procedures of Pakistani legal system. The business class, considering ADR a perfect and preferable method, tries to resolve their commercial conflicts through ADR. In Alstom Power Generation v. Wapda 2007, the court realized that conflicting parties try to choose the peaceful modes of resolution of commercial conflicts. However, Pakistani legal system usually never provides any of such opportunities for dispute resolution but if it is provided then limitations are placed on the ambit of these opportunities.

In Pakistan the stock of pending cases and delay in dispensation of justice is the main cause of apprehension not only for Pakistani legal system but also for the people who tolerates the injustice consequently, the need for ADR is consistently increasing by Pakistani legal regime. The trust of the public on Pakistani legal system has been shaken due to judicial and procedural delay in dispensation of justice (Jayachandra, 1997). ADR is undoubtedly considered as the most preferable way for the resolution of disputes and conflicts in the present time. ADR from the last twenty years has been repeatedly discussed by the legal systems. Even many states have institutionalized ADR as a part of the judicial system as many countries of the world consider it a process for dispensation of justice. 

Pakistani legal system has certain laws and has amended the provisions for dispute’s resolution by ADR like “Code of Civil Procedure 1908, Code of Criminal Procedure 1898, Small Claims and Minor Offences 2002, Local Government Ordinance 2001, Local Government Act 2013, Arbitration Act 1940, Constitution of Pakistan 1973, National Accountability Bureau Ordinance 1999, Probation of Offenders Ordinance 1960, and Muslim Family Courts Act 1964, Alternative Dispute Resolution Act, 2017, which is applicable only in Capital Territory of Pakistan.”

However; the issue lies in implementation and execution of these provisions and laws. In Pakistan ADR’s laws have very rare implementation and these laws have not been executed to control the delaying justice. In Pakistan there is a very unusual discussion on any informal method for dispute resolution.  In Pakistan there is a need to define the basic concept and different techniques of ADR (Hassan, 2020). The foremost purpose of launching the alternative mediums is societal stabilization by the resolution of disputes and conflicts between different parties. By these alternative mediums the mutual relationship of the parties stayed unaffected. ADR is better than the expensive, time consuming, complex and formal court proceedings (Guru, 1981). The resolution of conflict is done by arbitration, mediation and conciliation or negotiation in ADR and each technique is applied differently according to the nature of dispute.

Arbitration

Arbitration in Pakistan is recognized by the Constitution of Pakistan, 1973 particularly, for the resolution and the maintenance of the “administrative relationship” between the center and provinces of Pakistan. In Pakistan, an outdated pre-partition statue discusses the disputes of Arbitration entitled as Arbitration Act 1940.  In 2011, the enactment of (Arbitration Agreements and Foreign Arbitral Awards) Act 2011 propagated in Pakistan that deals with discuss the implementation of “foreign arbitral awards” and “arbitration agreements (Ikram, 2021).” However, this act is the entire incorporation of “New York Convention” into domestic law of Pakistan. 

Arbitration is a mode of ADR in which the resolution of disputes is done outside the court. The neutral and unbiased third party called “Arbitrator” resolves the conflicts of two parties by arbitration (Jonathan, 2014). Arbitrator listens to the arguments and contentions of conflicting parties, examines the evidences provided to him and in the end concludes his decision that is called award and that decision is binding on both conflicting parties (Scottish, 2014). The arbitrator is selected by the mutual agreement of conflicting parties and the proceedings of the arbitration are held privately though these proceedings are easy, informal and extraordinarily soothing (Ikram, 2013). In Defence Housing Authority, Islamabad v Multi-National Venture Development (Pvt.) Ltd. Court discusses the arbitrator as:

“Arbitrator is 'a neutral person who resolves disputes between parties, especially by means of formal arbitration'. Arbitrator as 'the person to whose attention the matters in dispute are submitted-a judge of the parties own choosing, whose functions are judicial and whose duties are not those of mere partisan agent, but of an impartial judge, to dispose equal justice to all parties, and to decide the law and facts involved in the matters submitted, with a view to determining and finally ending the controversy.”

Arbitrator is like a local court. In Waheed Brothers v Izhar Pvt. Ltd 2002., the court describes that the designated representatives and agents of the conflicting parties arrange the domestic tribunal called arbitrator. The responsibility of arbitrator is to dispense expeditious justice within no time and low expenses. Arbitrator never does drag the conflicting parties into any technical procedures of law as common courts do.

Arbitration clause in agreement is executed on written consent of either party to contract (Ullah, 2013). In Messrs Eckhardt & Co, Marine v Muhammad Hanif 1993, it is elaborated that the arbitration clause is not revoked on the breach of main and principal contract. If one of conflicting party wants the resolution of dispute by court proceeding on the other hand the second party wants resolution of dispute by arbitration in such circumstances “the arbitration clause is preferred over the litigation” even the “writ jurisdiction” cannot be challenged in presence of arbitration clause in the contract (Muhammad, 2000). 

In the proceeding of Arbitration the technicalities of law and lengthy procedures are avoided that makes the proceedings a bit informal that is the reason arbitration is preferred over the litigation. Arbitration is an ancient and easiest technique of resolution of disputes than litigation and a source of expeditious justice as well (Grey, 2015). The “transparency of Arbitration” process enhances the confidence of conflicting parties to select this technique of ADR for resolve their dispute (Julian, 2003). The decision of courts usually stands in the favor of one of the conflicting parties while the losing party never acquires anything from the order of court except losses and compensation that it had to give the second party while in arbitration both the parties satisfactorily agree on some terms and conditions for resolution of conflicts. This is a reason that the makes arbitration a more reasonable process for commercial disputes resolution as well as it also has short procedures than litigation. Resolution of disputes by arbitration ensures expeditious justice and helps to lessen the burden of court.

Mediation

One of the modes of ADR for resolution of the matter by the “simplified and tranquil compromise” is mediation in which the conflicting parties are facilitated by the unbiased or impartial third party called the “mediator”. The third party with its intellect, ability and experience helps the conflicting parties for resolution of the dispute. The decision of the mediator is not binding on the conflicting parties as the mediator only helps them to result in any agreement. In Imperial Electric Co. v Zhongxing 2019, The court stated that in mediation the mediator convenes sittings for the conflicting parties so that they could sit and come to a solution for solving the disputes. The matter of conflict is diversely discoursed and argued. Both the parties according to their intellect tell their point of view as well as the solution to the conflict. After hearing both parties, the mediator organizes a “Caucus Meeting” and after that he arranges a “Joint Meeting.” Although the mediator cannot play an authoritative role, but it listens to views of all parties prudently and makes efforts to resolve the issue of parties through mediation. 

Mediator being an escort has a role of altering, adjusting and regulating the process of mediation but he cannot regulate the conclusion. The conflicting parties have supremacy to devise the consequences and conclusions of the mediation. The mediator cannot be condemnatory and judgmental as well (Isabelle, 1995). In Asif Sajan and ors v Rehan Associates and ors, the court deliberates the main purpose of resolution of conflicts by mediation which is to lead the conflicting parties on a neutral forum and that forum is designated by the conflicting parties. 

In Halsey v Milton Keynes, Dyson LJ stated that Mediation is much more advantageous than the litigation and court process as in mediation the deduction of dispute ends on the apology, clarification and agreement. Similarly, In Dunnett v Rail Track, Brooke LJ stated that mediation is an “emotional process” in which any kind of family disputes or cases related to negligence can be resolved and concluded in a way that both the parties feels equally satisfied and pleased and this cannot be done by courts of law.

Negotiation

The mode of ADR negotiation has a bit divergence from other modes as all the other modes encompass a third party as umpires for dispute’s resolution for example in case of arbitration and mediation the arbitrator and mediator respectively are the third parties. However, in negotiation the dispute resolution involves only conflicting parties. So that negotiation is called a “two sided technique”. In negotiation one of the parties that differ on any point endeavors to bargain on that conflicting point and discourses the matter with the second party. In negotiation there lies the element of “Persuading” one another (Goldberg, 1992). While in negotiation the conflicting parties’ shares their point of views and claims on the subjected conflicting point and negotiate until the issue is not resolved (Nolan, 2008). There can be one issue with dispute resolution by negotiation which is that parties while having negotiations only focus on their own status and point of view without heeding the desires or concerns of the second party. So in absence of the third party or umpire there may be a probability of partial proceedings. Though this mode of ADR has inadequacy, this mode is far better than litigation as this mode can save expense and time for both parties.

Conclusion

The trend of delaying justice in Pakistan is a threat to rule of law. The burden of cases on Pakistani Court can be the cause of judicial inefficiency and ineffectiveness.  Backlog of cases in every court of Pakistan either superior or subordinate, is the cause of the delay of justice as it not only affects the judicial system but also affects the parties of suits. So ADR techniques can share the burden of courts by amicable dispute resolution outside the court. ADR will not only be the alternative technique to litigation or judicial proceedings but will also assist the legal or collateral system functioning side by side with the litigation in Pakistan. There is also a dire need of proper and effective implementation of legislation regarding ADR in Pakistan as existing Laws on ADR are also usually not implemented. Awareness and understanding for ADR in Pakistan is requisite for flourishing ADR in Pakistan.   

References

• Aggarwal, C. L. (1978). Laws' Delay and Acccumlation of arrears in the High Courts. The Journal of Bar Council of India 7(1), 41.
• Akhtar, S., Alam, M., Shafiq, M. S., & Detho, I. A. (2008). Study of informal justice system in Pakistan: Evaluation report. Karachi: Sindh Judicial academy & UNICEF
• Alam, M. S. (2010). Problems of delay and backlog cases. The Daily Star.
• Ali Muhammad and others v Bashir Ahmad through Legal Heirs, (1991). SCMR 1928.
• Anderson, J. H., & Gray, C. W. (2006). Anticorruption in transition 3 who is succeeding-- and why?. Washington, DC: World Bank.
• Arbitration Act 1940.
• Arbitration Agreements and Foreign Arbitral Awards) Act 2011.
• Ashiq Hussain Shah v. Province of Punjab. (2003). SCMR 1840).
• Asif Ali Zardari v The State. ( PLD 2001 Supreme Court 568).
• Asif Sajan and ors v Rehan Associates and ors (PLD 2012 Sindh 388).
• Askar Ali and others v. The State (PLD 1959 Supreme Court (Pakistan) 251).
• Balakrishnan, K. G. (2007). “Delay in disposal of cases.” China.
• Barry, D., & Keefe, S. (1998). Justice denied: Delay in criminal cases . Northern Ireland Legal Quarterly, 49(4), 385-403.
• Bilal, Dr. M., & Khokhar, F. (2021). Justice Delayed or Denied: The Myth of Justice in Pakistan. Journal of Law & Social Studies, 3(2), 124–132. https://doi.org/10.52279/jlss.03.02.124132
• Blake, S., Brown, J. & Sime, S. (2016). A Practical Approach to ADR. Oxford University Press.
• Blue, R., Richard, H., & Berg, L. A. (2008). “ Pakistan rule of law assessment final report.” [Washington, D.C.]: United States Agency for International Development (USAID)
• Chaudhry, I. M. (2011). “Concluding speech.” Paper presented at the National judicial conference 2011, Islamabad.
• Chaudhry, I. M. (2012). “Keynote Address.” Paper presented at the International Judicial Conference, Islamabad Armytage, L. (2012). “ Reforming Justice: A Journey to Fairness in Pakistan.” Paper presented at the International Judicial Conference, Islamabad.
• Constitution of Pakistan (1973). Article 37 (D) “Promotion of social justice and eradication of social evils,”Constitution of Pakistan, Articles 146(3), 152 and 159 (4).
• Defence Housing Authority, Islamabad v Multi- National Venture Development (Pvt.) Ltd. (2019 C L D 566).
• Djankov, S., Porta, R. L., Lopez-de-Silanes, F., & Shleifer, A. (2003). Courts. Quarterly journal of economics, 118(2), 453-517.
• Dunnett v Rail Track plc. (2002). EWCA Civ 302 [14].
• European Commission for the Efficiency of Justice. (2006). CEPEJ Studies / European Commission for the Efficiency of Justice (CEPEJ). Strasbourg: Council of Europe
• Excelsior Cotton Company v Trading Corporation of Pakistan (PVT.) LTD, (2003). YLR 461.
• Fiadjoe, A. K. (2004). Alternative dispute resolution: a developing world perspective. Cavendish Pub.
• Ghazi, M. A. (2006). The role of judiciary in the promotion of a culture of tolerance. Paper presented at the International Judicial conference, Islamabad.
• Ghulam Mustafa Shehzad v Lahore High Court (2007). SCMR 1786.
• Gray B. B. (2015). International Arbitration: Law and Practices. Kluwer Wolters, Ed 2 nd ,
• Guru Nanak Foundation v. Rattan Singh and sons, (AIR 1981 Supreme Court 2075)
• Haley, N. (2008). Alternative Dispute Resolution in a Nutshell. St Paul.
• Halsey v Milton Keynes General NHS Trust (2004). EWCA Civ 576.
• Hassan, A., & Malik, D. M. (2020). Status of ADR in Existing Laws of Pakistan: A Brief Study. Global Regional Review, V(III), 263–269. https://doi.org/10.31703/grr.2020(v-iii).27
• Hazra, A. K., & Micevska, M. B. (2004). The Problem of court congestion: evidence from the Indian lower courts. Paper presented at the Royal Economic Society Annual Conference 2004 Swansea.
• Imperial Electric Co. Ltd. v Zhongxing Telecom Ltd. (2019). CLD 609.
• International Crisis Group. (2008). reforming the judiciary in Pakistan Asia Report N°160 Islamabad. Brussels: International Crisis Group.
• Iqbal, J. (2006). The Role of the judiciary as a catalyst of Change. Paper presented at the International judicial conference, Islamabad.
• Jayachandra. K. (1997). “Alternative Dispute Resolution, in P.C. Rao and W. Sheffield, Alternative Dispute Resolution: What it is and How it Works,” Universal Law Publishing Co. Delhi, p.79
• Julian D. M. L. (2003). Anti-Suit Injunction in International Arbitration. Juris Publishing Incharge, p. 77.
• Khan, F. S. (2004). Quest for justice: Judicial system in Pakistan. Islamabad: The Network Publications
• Khan, F. S., & Khan, S. R. (2003). A Benchmark study on law-and-order and the dispensation of justice in the context of power devolution. Islamabad: Sustainable Development Policy Institute.
• Krishnan, J., & Kumar, C. (2011). Delay in Process, Denial of Justice: The Jurisprudence and Empirics of Speedy Trials in Comparative Perspective. Georgetown Journal of International Law, 42(4), 747–784. https://www.repository.law.indiana.edu/facpub/155
• Lone, A. A. (2011). Responsibility of the bench and bar in dispensation of justice. Paper presented at the National judicial conference, Islamabad.
• Macnair, M. (2004). “Lord King and Lord Talbot: an eightennth century attempt to reduce delay in chancery and its general lessons”. In C. H. V. Rhee (Ed.), The Law's Delay: “ Essays on undue delay in civil litigation” p. 181-195). Antwerp: Intersentia.
• Marrijuddin, Q. M. (1996). Delay in administration of justice an assessment. Central India Law Quarterly, 9(1), 5-19.
• Martin, J. A., Prescott, E. A., Hudson, M. J., & Courts, N. C. f. S. (1981). Appellate court delay: structural responses to the problems of volume and delay: National Center for State Courts
• Messrs Alstom Power Generation V. Wapda and ors, (PLD 2007 Lahore 581).
• Messrs Eckhardt & Co, Marine GmbH v Muhammad Hanif (PLD 1993 SC 42).
• Messrs Waheed Brothers (Pakistan) LTD., Lahore through Chief Executive V Messrs Izhar (PVT.) LTD., Lahore through Managing Director (2002SCMR 366)
• Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, Inc., 473 U.S. 614, 633 (1985).
• Mohan, A. (2009). Justice, courts and delays. New Delhi; India: Universal Law Publishing Co.
• Moyer, T. J. (2008). Selected opinion summaries 2008. Columbus, Ohio: Supreme Court of Ohio.
• Mrs. Nasima Yousuf through Special Lawful Attorney v Tehseen Abass Gilgiti and others P L D 2020 Sindh 68.
• Mst. Ghulam Bibi and Others v Sarsa Khan and others (P L D 1985 Supreme Court 345).
• Mst. Kishwar Bibi and others v. Mst. Fazal Bibi and others (PLD 2004 Lahore 717).
• Muhammad Ansar v Administrator, Town Committee, Kabirwala, District Khanewal (2000 PTD 478).
• Muhammad Idress v.Shamim Akhtar. (1980 SCMR 787).
• Muhammad Javed v. The State (2001 MLD 1206).
• Muhammad Sharif Shar v. The State (2000 PCr.LJ 1882).
• Muhammad Younas Gujjar and others v. District Police Officer and others (2016 Y L R 307).
• NAB. (2002). National Anti-corruption strategy. Islamabad. Pakistan.
• Nahaki, A. A. K. (2011). Responsibility of the Bench and Bar in Dispensation of Justice. Paper presented at the national judicial conference Islamabad.
• Nanik Ram and others v. Ghulam Akbar and others (2016 M L D 52).
• National Accountability Bureau (NAB) through Chairman v Messrs Hudaibya Paper Mills Limited, Lahore and others (P L D 2018 Supreme Court 296).
• Nawaz, C. H. (2004). “ Delay reduction with effective court management.” Pakistan Legal Decisions. PLD.
• Nelson, B. (2006). Law and Ethics in Global Businesses. Routledge.
• Northern Regional Health Authority v. Derek Crouch (1984). QB 644 (C.A).
• Nouroz Khan v.Haji Qadoor. (2005). SCMR 1877
• Order IX Rule 6 of The Civil Procedure Code, (1908). https://www.aaptaxlaw.com/code-of-civil-procedure/order-IX-code-of-civil-procedure-rule-1-2-3-4-5-6-7-appearance-of-parties-consequence-of-non-appearance-1-2-3-4-5-6-7-order-ix-of-cpc-1908-code-of-civil-procedure.html
• Order VI rule 17 of CPC; https://taxguru.in/corporate-law/amendment-pleadings-order-vi-rule-17-cpc-1908.html
• Order XVII Rule 1 of the Civil Procedure Code; https://www.aaptaxlaw.com/code-of-civil-procedure/order-xvii-cpc-rule-1-2-3-adjournment-xvii-of-code-of-civil-procedure-1908.htm
• Perelman, C. (1963). The idea of justice and the problem of argument. New York: Humanities Press.
• Qureshi, A. H. (1998). Civil trial delayed. Pakistan Legal Decision (PLD), Journal, 39.
• Rawls, J. (1971). A theory of justice. Cambridge, MA: Belknap Press of Harvard University Press.
• Rawls, J. (1999). A Theory of Justice. Revised edition, Harvard University Press, Cambridge. P 3
• Redfurn & Hunt. (2002). International Arbitration. Oxford University Press, Ed 5 th .
• Rehmat Ali v.Javed ur Rehman. (1985). SCMR 698.
• Sh. Saleem Ali v Sh. Akhtar Ali (PLD 2004 Lahore 404).
• Sherwani, Z. A. K. (2006). “ Case flow management system and court automation.” Paper presented at the International judicial conference, Islamabad.
• Siddique, O. (2011). Pakistan's experience with formal law: an alien justice: Cambridge University press.
• Statement of cases pending in Pakistan. http://ljcp.gov.pk/nljcp/assets/dist/news_pdf/courts.pdf
• Stephen, B. G. (1992). Dispute Resolution: Negotiation, Mediation and Other Process. Boston Little, Brown, Ed 2, page 37.
• Syed Farrukh Hussain Shamsi v Lahore High Court, Lahore through Registrar (2018). P L C (C.S.) Note 4).
• Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550).
• Ullah, I. (2013). Interim Measures in Arbitration under the Pakistani Legal Regime. ArbitrationInternational, 29(4), 653–670. https://doi.org/10.1093/arbitration/29.4.653
• Ullah, I. (2021). Arbitration Law of Pakistan. Kluwer Law International BV.
• United Nations office on drugs and crimes. (2004). Assessment of justice system integrity and capacity in three Nigerian states: Global programme against corruption. United Nations office on drug and crime and Nigerian Institute of advanced legal studies Nigeri.
• Waheed Brothers Pakistan Limited Lahore v Izhar Pvt. Ltd. (2002). SCMR 366)
• Ware, S. J. (2001). Alternative Dispute Resolution. Saint Paul.
• Whittaker, C., Mackie, A., Lewis, R., & Ponikiewski, N. (1997). Managing Courts Effectively: The Reasons for Adjournments in Magistrates' Courts. London, United Kingdom: Great Britain Home Office Research Development Statistics Directorate.
• World Bank. (2002). World Development Report 2002. Washington: World Bank Publications. http://lawcommissionofindia.nic.in/adr_conf/M ayo%20Rao%20case%20mn gt%203.pdf.