With a population of about over seven people on earth, human beings come across each other every single second. This interaction results in millions of transaction each day and billions every month. After the world transformed into a global village, these interactions - whether social, cultural, or of any type - have increased manifold, both in quantity and complexity. This enormous and complex nature of transactions in a current multicultural, multiracial and multilingual world is resulting in numerous disputes. Most of them are undoubtedly the result of misperception and communication barriers. However, in some cases the deliberate acts of fraud, forgery, cheating and misrepresentation by some people are witnessed. Every nation, in this context, is faced with a challenge to reduce these faulty interactions at first stage and settle them with a minimum cost at the second stage of adjudication.
Against this backdrop, a corrupt person does not only deprive the nation of its hard-earned income made through taxes, but also cause an additional loss to government in prosecuting him. Despite the judiciary’s hard work, today it is not possible to provide an appropriate number of courts and judges to settle countless disputes, whether between individuals, groups or organisations without a waste of precious resources. Even in the best performing countries, the courts are burdened with a huge backlog of cases. Therefore, the world is moving towards alternative ways for the settlement.
The term Alternative Dispute Resolution (ADR) is becoming popular day by day. S. Muralidhar, in one of his presentations at the Maharashtra Judicial Exchange, defined it in these words: “ADR in plain terms is an alternative to the Formal Legal System (FLS). Its need is being underscored in the context of the failure of the formal legal system.” It provides alternatives to litigation in the form of negotiation, mediation, arbitration, summary trial, fact-finding etc. Omar M.H. Aljazy, an international business lawyer, has remarked: “The use of ADR is to resolve the disputes outside the legal system has been growing in significance and popularity.” It is upcoming favourite as Brad Spangler maintained: “ADR has grown rapidly in the US since the political and civil conflicts of the 1960s. The introduction of new laws protecting individual rights, as well as less tolerance for discrimination and injustice, led more people to file lawsuits in order to settle conflicts. A number of solutions have been proposed, and some have been implemented, to reduce the congestion in our court system and to reduce the litigation cost facing all members of the society.”
According to Frank B. Cross, Professor of Business Law at The University of Texas, and Roger LeRoy Miller, who has served on the faculty of several universities, the enforcement of arbitration clauses, the use of court referred arbitration and mediation, and emergence of an increasing number of private forums for dispute resolution have all helped to reduce the caseload of the courts. Stephen B. Goldberg, Professor of Law Emeritus at Northwestern University School of Law, has indicated towards the benefit of ADR that it is generally faster and less expensive and based on more direct participation by the disputants, rather than being run by lawyers, judges, and the state. In most ADR processes, the disputants outline the process they will use and define the substance of the agreements. This type of involvement is believed to increase people's satisfaction with the outcomes, as well as their compliance with the agreements reached.
It is based on an easy going procedure and cooperative approach in comparison of lengthy, formal, rigid and competitive procedures. Hence in ADR, parties come together for resolution, instead of competition of win and lose. It provides a chance to improve the relationship between the parties and end their communication gaps. Despite some criticism on the application of ADR and its limitations, the USA, the UK, Germany and Japan all have either made reforms or are in the process of making some. America is the first one to bring statutory changes to integrate it in the formal procedure of courts.
Likewise, the Civil Procedure Code (Pakistan) Part IV special proceedings have also been amended by introducing Section 89(A) of the ADR in it. However, this amendment being too brief requires more reformation as done in the case of arbitration. There is a need to bring the concept of mediation out of the narrow application on only family matters. After analysing the case law of US and UK, it has been revealed that the ADR provision in our law is totally ignored. The study of other ADR procedure at international level can guide us to adopt a similar mechanism to improve our otherwise cumbersome and prolonged litigation process. This is sort of benchmarking the procedure after analysing their utility and impact in other countries while remaining keen to our own socio-cultural environment.
Although in Pakistan, we have revived the old ‘arbitration’ laws, but still we need to move ahead more swiftly. The concept of judicial mediation opportunities given to the parties in other countries need to be applied in our country. The National Judicial Conference and Terms of Reference on Access to Informal Justice System in Pakistan provide wide detail on this topic. It would be more appropriate to depict our backlog of pending cases in a report published by the Law and Justice Commission of Pakistan. It says: “It is estimated that it would approximately take 15 years to clear the backlog, even if new cases were not registered.”
The National Accountability Bureau (NAB) has provided an ADR mechanism under National Accountability Ordinance 1999, which is seen as very immoral and wicked one. It is criticised for giving relief to the blue-eyed offenders. On the contrary, the voluntary return and plea bargain is the concept taken from the Civil Law Countries, such as the US. There is tremendous misconception about the theme of this mechanism, as well as its application parameters. Actually, it is an innovative feature of the accountability process. The option of voluntary return, as evident from the wording, is a personal initiative of the accused to return the looted money at inquiry stage and before the authorisation of investigation against him or her. However, it may not be accepted where an accused is involved in corruption cases of serious nature. In such cases, the investigation is authorised so that the accused may be punished appropriately through conviction, as plea bargain in investigation amounts to conviction.
As regards plea bargain, it is a sort of dispute settlement process in which the accused and the prosecution in a criminal case agree on a mutually satisfactory disposal of the case, subject to approval of the court. A defendant himself agrees to plead guilty to a lesser offence or to only some of the counts of multi-count indictment in return for a lighter sentence and fine, or both. It is very rational mechanism, as it provides greater flexibility to the state in lessening the load of criminal cases, while achieving the desired objective of prosecuting an offender. It also helps in saving judicial resources, including time and money, through quick disposal of cases. The corrupt officials cease to be public office-holders for 10 years. Additionally, they have no right to appeal when they plead themselves guilty. The best thing in this mechanism is speedy recovery of plundered wealth and eventual return to the state exchequer or affectees; the sole purpose is not just to confine a person in jail, but to recover the losses caused to the government or public. Through plea bargain and voluntary return, the NAB has recovered more than Rs 217 billon from the plunderers.
As a nation, we have to decide whether we want to follow the footsteps of Quaid-i-Azam and Allama Iqbal or give birth to characters like Han Van Meegeren, David Stein, Tom Keating, Art Forgers, John Stone House and Double Shah - a domestic cheat?

   The writer is a freelance columnist.