Mediation Before Litigation in Pakistan as a Way to Reduce Court Backlog and Improve Access to Justice

In Pakistan, justice often arrives years too late; by the time a case is decided, the damage has already occurred. With over 2.27 million backlogs of cases in our courts, specifically the Supreme Court, Federal Shariat Court and High Courts together have around 362,000 pending cases, while 1,908,907 are in the District Courts, the judicial system is under immense pressure as it is plagued by high costs, procedural complexities, and delays. As a result, residents become frustrated and lose faith in the legal system.

One step that can be taken to reduce this crisis is mediation before going to court. Mediation is a non-judicial process in which a neutral third party, called a “mediator”, facilitates dispute resolution between two parties by encouraging negotiation and communication in order for them to arrive at a mutually agreeable solution. A final settlement reached through mediation is similar to an agreement between the parties, and if one party does not follow the agreement or violates the other’s rights, then the second party may take the matter to court for non-compliance with the agreement.

Joseph Grynbaum: an ounce of mediation is worth a pound of arbitration and a ton of litigation. Making mediation mandatory before going to court can be an effective step to resolve numerous disputes without the need to initiate trials, as it can lead to faster and less costly settlements compared to litigation. It not only reduces the burden on courts but also is confidential to the privacy of the parties who do not want to disclose their personal matters to others. If the matter can be resolved through communication and negotiation, then there is no need to move towards a lengthy and expensive trial. The mandatory pre-trial method is helpful and less antipathetic.

Specifically, family disputes like divorce, child custody, and domestic abuse, which are extremely personal and emotional in nature, need to be resolved within time, at least through mediation, before proceeding towards litigation. As mediation always has had a positive impact on resolving family disputes, it manages to resolve them within time by removing the procedures that are hard and cause hurt to the privacy and sentiments of the parties in dispute. Particularly, this method is beneficial for women who belong to conservative areas and tribes of Pakistan and are compelled to bear the social pressure while resolving their matters against their own families through the courts.

Pakistan provides a legal framework for mediation in the form of the Alternative Dispute Resolution Act 2017, which gives a structured framework for court-referred mediation. Another statutory reference is Section 89-A and Order 10 Rule 1-A of the Code of Civil Procedure 1908, which empowers courts to refer cases to mediation. Other relevant statutes include the Small Claims and Minor Offences Ordinance 2002, the Industrial Relations Act 2012, the Income Tax Ordinance 2001, and the Customs Act 1969. Despite these laws, mediation is not mandatory in Pakistan. This remedy can only be availed of by the consent of both parties. Although a notable example of mediation being effectively used in Pakistan is the Engro Fertilisers Limited-Labour Union Dispute 2014. This case illustrates that how cases even related to labour disputes could be resolved by mere discussions rather than proceeding towards long, hectic litigation procedures.

Other countries like Canada, Italy, India, Australia and others also make mediation a first and mandatory remedy to avail before proceeding towards courts in different matters. It is applied to labour disputes, community conflicts and even in international political negotiations. Even in the case of Abbas Ali Khan Vs Hyundai-Nishat Motors Pvt. Ltd and another, the Lahore High Court in 2024 directs that except in urgent or complex cases, courts shall refer matters to mediation prior to proceedings, staying mediation for up to 30 days to facilitate mediation. As mediation outcomes not only save time and money for parties, but they also reduce the load of work in the courts as well as being a more updated way of resolving issues based on the divine culture of peace.

Despite having a legal framework for mediation, it is not the most recognised method as there are several obstacles to going for mediation. Residents aren’t very aware of this process. There are also no well-trained mediators or government training programmes available. There is a lack of mediation centres in the country. If some mediation centres exist, they are limited to urban areas only. Many rural communities are unaware of this option; there is reluctance among lawyers to practise mediation at government level. Lack of mediation centres, for mediation to truly thrive, Pakistan can make it effective with stronger legislative backing, mandatory mediation protocols, and aligning it with international standards. Such initiatives could not only streamline the judiciary’s burden but also build public confidence in mediation as a viable and culturally compatible method of conflict resolution.