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Pakistan’s existing judicial landscape Adversarial mode of dispute resolution. Common Law System

ADR- a new way ahead concept, benefits, issues & challenges Syed Mansoor Ali Shah Advocate Supreme Court of Pakistan AFRIDI,SHAH & MINALLAH Advocates & Legal Consultants Lahore. Pakistan’s existing judicial landscape Adversarial mode of dispute resolution. Common Law System

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Pakistan’s existing judicial landscape Adversarial mode of dispute resolution. Common Law System

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  1. ADR- a new way aheadconcept, benefits, issues & challengesSyed Mansoor Ali ShahAdvocate Supreme Court of PakistanAFRIDI,SHAH & MINALLAHAdvocates & Legal ConsultantsLahore

  2. Pakistan’s existing judicial landscape Adversarial mode of dispute resolution. Common Law System Almost all disputes are resolved through courts or tribunals. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  3. Some disputes also go to Arbitration – which is a mechanism for dispute resolution outside courts but the final decision (award) ends up in court.

  4. Both forms still adversarial – arbitrator acts like a judge. Process and outcome not in control of the disputants (parties). SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  5. We have been trained to surrender to an adjudicator and await a decision. More than that the whole case is a contest of lawyering skills. It has been widely admitted that traditional adversarial process may not always be the best approach in dispute resolution SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  6. We want to challenge our adversaries rather than come to terms with them. Litigation is not one point settlement but involves the whole hierarchy of court structure. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  7. Litigation involves:·Time delays ·Cost – financial & emotional ·Cumbersome procedures ·Actual dispute gets shrouded in legalese·Parties notcentre stage SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  8. 10% cases go to court, the rest are settled through alternatives means SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  9. AlternativesTraditional alternate dispute resolutionsTraditional Justice System works through Khandan, thara, baithak, haveli, dera, jirga and panchayats SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  10. These traditional modes of dispute settlement are more a variant of arbitration as the village elders decide the matter- once gain the process and outcome not in the control of the parties. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  11. In a village council, a suit is seen as part of the environment from which it grew. The individuals, the families, the community and the histories that led to the discord are on trial. The community participates in an open discussion and the decision arrived at by a core of respected leaders focuses on compromise. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  12. Other Judicial Systems based on the ADR concept·Basic Democracies Act, 1959 ·Conciliation Courts Ordinance, 1961·Local Government Ordinance, 2001(provincial) SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  13. Alternative (Alternate) Dispute ResolutionOr “Appropriate Dispute Resolution” Taking disputes out of courts ·Negotiation·Mediation ·Arbitration·Med Arb·Early Neutral Evaluation SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  14. Advantages of ADR • ·Cost effective  • ·Quicker  • ·Less hostile – win win situation- ·Arguments based on commercial viability (cost benefit analysis) rather than law and its interpretation. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  15. ·Deals with the root cause. Parties are encouraged to think about the basic reasons of dispute·Encourages communicative capacity of the disputants. They look at each other eye to eye. ·Mediators are not strangers like courts but are friends and disputes are decided in a friendly manner and the disputants part as friends. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  16. ·ADR is voluntary as it allows disputants to solve their problems themselves.·Mediators do not require long training like judges·Not an adversarial process- A facilitative process SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  17. REAL ROLE OF MEMBERS/MEDIATORS-Encourage free exchange of information-Help parties understand-Suggest alternatives-Cost benefit analysis-Shift the focus from past to the present-Stimulate the parties to suggest creative settlements-Invent solutions SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  18. PROPONENTS OF ADR ASSUME THAT JUSTICE IS NOT SOMETHING PEOPLE GET FROM THE GOVERNMENT BUT THAT IT IS SOMETHING PEOPLE GIVE TO ONE ANOTHER[1].[1] 94 Yale Law Journal, 1985 (Thonia, etc) SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  19. Foundation of a successful settlement -FREE AND HONEST COMMUNICATION BETWEEN PARTIES-NO EFFORT TO HIDE THE CRACKS IN THEIR POSITIONS-A SENSE OF COST BENEFIT ANALYSIS-ABILITY & DESIRE TO COMPROMISE SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  20. Position in Pakistan after July, 2004Our tax system has introduced ADR in July 2004. 20 months in operationWelcome addition in our tax system. Innovative and a first in the tax system. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  21. Our system is a hybrid. Mix of negotiation, mediation and arbitration.Interestingly the final decision is to be given by the party to the dispute i.e, CBR. A unique structure. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  22. Under the law:·Application heard by the CBR for approval and constitution of Committee.·Committee is constituted·Power to call expert and hold inquiry if required - reopening of the entire matter·Mediation – arriving at a consensual arrangement SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  23. ·Otherwise Recommendations by the Committee.·Recommendations can be approved or rejected by CBR.·In case of rejection, litigation continues. In case of acceptance, the order is placed before appropriate forum for orders. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  24. Issues:Private vs. Public SectorCommercial Mediation or Arbitration has taken root in private disputes. This is because parties have the absolute authority to deal with their rights and property. Things drastically change when we get into Public Sector. The dispute relates to public funds or public property and it becomes difficult to write off public money. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  25. In bureaucratic organizations there is a tendency to follow the path of least resistance and minimal risk. This means taking the tried and true route of dumping the problem into the courts lap rather than risking a possible criticism for an unwise settlement or to face any untoward accountability.Agencies like NAB, etc are a deterrent. Ability to settle is seriously compromised. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  26. System - CBR dependentrecommendations not binding but have to be approved by CBR. CBR is there to collect revenue , not to provide a judicial system. Revenue vs ADR.Rejection of recommendations influence the lower tax authorities. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  27. Selection of Members·Must be institutionalized·Criteria should be laid down in law·Experience, professionalism, integrity & expertise must be given due weight.·A transparent procedure of selection·Members must have tenure. There must be performance evaluations.·Members to hear matters pertaining to another province. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  28. Conflict of interest·Members should decline to act as members in case of conflict of interest – be it an individual or a firm. ·Member representing CBR must not sit on a case belonging to their own Collectorate SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  29. CBR’s interface·No response time for CBR to respond to the recommendation is prescribed in law·No procedure prescribed in law for consideration of recommendations by CBR · Board in Council to consider the recommendations·      Existing follow up process not efficient – no proper secretariat within CBR to handle ADRCs. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  30. ·No proper acknowledgement of the receipt of recommendations·Copy of the final order not sent to members.·Order passed on the recommendations does not carry the reasons given in the recommendations. ·In case of dissent within ADRC – the matter goes to cold storage·In one case a Member has died and the ADRC has come to a standstill for a while now. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  31. ·Chairman carries the responsibility of fixing the hearing and venue. This secretarial work weighs heavily on the time and office resource of the Chairman- therefore ADR centers need to be developed with proper secretarial staff so that ADRC are not burdened with administrative worries.CBR to develop an ADR team to attend to ADRC. A team with a different tool kit and expertise. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  32. Limits of ADRScope of ADR- does not include legal interpretation or decision on policy issues. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  33. Procedures and time limitations·Time for ADR recommendations to be extended perhaps to 60 days·Format of the application- simple- just to narrate the position of the party.·Less cumbersome- user friendly SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  34. Mediation cum ArbitrationBut where mediation has taken place- the agreement should be binding on both the parties. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  35. There should be flexibility to mediate at any stage of the proceedings.Recommendations/ orders circulated-put on the website.Transparency SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  36. Challenges:ADR at an earlier stageNeutral Evaluation  Awareness  Multidoor Court House Selection of ADRC members SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  37. Public confidence needs to be built. Recommendations should be honoured or made binding.Training programmesAuthority to settle SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  38. Training ADR skills in legal curriculumNew skill set for professionals Need for Negotiators/ mediatorsADR Centres SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

  39. Future:Change of mind setDeveloping the skill setAutonomousADR will be driven by the tax payers- if they see justice is being delivered. SYED MANSOOR ALI SHAH ASM, LAHORE 18-3-2006

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