INSTITUTIONALIZING ALTERNATIVE DISPUTE RESOLUTION IN JUDICIAL SYSTEMS: COMPARATIVE AND CRITICAL ANALYSIS

Abstract

Alternative Dispute Resolution (ADR) has come of age from a fringe to a front-line tool in the process of justice reform. However, in this paper, the author argues that ADR can help alleviate backlog, encourage participation and maintain social cohesion and that all of this can be achieved by legislation, training and referral when supported by such legislation, training and referral, provided that courts across the jurisdictions are experiencing increasing caseloads, delays and loss of trust. There are several such new instruments at international level (such as the UNCITRAL Model Law on International Commercial Mediation and the Singapore Convention on Mediation) that have been introduced to provide greater certainty and enforceability, and the European Union’s Mediation Directive that has been introduced to promote access to mediation in civil and commercial disputes. In practice, researchers have discovered that court-connected mediation can have a positive impact on settlement rates and relieve court pressure in certain circumstances, but that the mediation process is influenced by program design, the skill of the mediator, the prevention of bias and educating participants. This paper differs significantly from many of those published to date, in treating ADR not just as a cost saving device. Rather, it proposes that ADR be considered as an institutional justice reform that must be judged based on its fairness, enforceability, inclusiveness, and trust of local communities. This is because it addresses a lacuna in the body of literature and also implementation of the legislation has been inconsistent in Pakistan.