Both the Supreme Court and the Federal Government are presently abuzz with the talk of reforming the civil justice system. In this environment, it is important to locate our reform efforts in the global context. Pakistan is not the only country in the world where the civil justice system is facing delays. Delays in the civil justice system is a story shared by many countries, including the United Kingdom (UK). It is especially instructive to look at how the UK responded to this problem in 1990.
In the UK, a Commission headed by a serving judge, Lord Woolf, suggested reforms which have radically altered the civil justice system. After about two years of research, Lord Woolf concluded that the problem of a delay is inseparable from that of unnecessary and frivolous litigation. Woolf had two approaches in front of him: (a) he could either expedite the system for all kinds of litigants; or (b) he could devise measures which discourage frivolous litigation and promote a settlement between the parties and make the courts accessible to only genuine litigants. Lord Woolf resorted to the latter approach, and it has worked.
Following that approach, Woolf put forward a few recommendations which are worth considering as we in Pakistan embark upon the path of civil justice reform.
The whole focus of Woolf’s recommendations was on discouraging litigation and making it the last option. It was envisioned that discouraging unnecessary litigation on one hand and active case management on the other hand, would curb delays. To give effect to that approach, Lord Woolf recommended four major solutions — rather obstacles for a frivolous litigant to surpass, for defeating delays: pre-action protocol, alternative dispute resolution (ADR), part 36 cost offers, and active case management. These solutions are interrelated and work best when given cumulative effect.
Lord Woolf published his final report in 1996, and subsequently recommended reforms in the Civil Procedure Rules 1998 (CPR). The reforms were very well received by various quarters. Empirical data shows that litigation was reduced by 25 percent in 1999, compared to the previous year. This trend continued as a further 23 percent fall in litigation was witnessed in the following year.
Another statistical study, conducted before and after the Woolf reform, unveiled the following figures. In 1996, a total number of proceedings commenced in the High Court were approximately 142,505. However, in 2005, the total number of proceedings commenced in the High Court dropped to just 15,317. Also, a major decrease in litigation was seen in County Courts as only 1,870,374 cases were instituted in 2005, compared to the 2,245,324 cases instituted in 1998.
After about two years of research, Lord Woolf concluded that the problem of a delay is inseparable from that of unnecessary and frivolous litigation. Woolf had two approaches in front of him: (a) he could either expedite the system for all kinds of litigants; or (b) he could devise measures which discourage frivolous litigation and promote a settlement between the parties and make the courts accessible to only genuine litigants
There is a lesson to be learned here. In our jurisdiction, any earnest attempt to defeat delays should include measures to discourage litigation and encourage settlement. It is only then the availability of speedy justice can be ensured.
Let’s shed light on another aspect of the reform: ADR. Mediation, as a part of ADR, has been widely embraced in the backdrop of Woolf reform. As part of the court’s duty to manage cases under CPR 1.4(e), it is incumbent on the court to encourage “the parties to use an alternative dispute resolution procedure if the court considers that appropriates and facilitates the use of such procedure”.
Mediation has been encouraged at every stage of litigation; any party who unreasonably refuses to mediate will be sanctioned (particularly in costs) at the conclusion of the trial. At the pre-trial stage, the parties are obliged to follow the pre-action protocol to evaluate, narrow down and understand the issues in dispute. Particularly at this point, after understanding each other’s position, the parties are expected to mediate to avoid litigation altogether. If mediation fails to bear fruit, then the parties are expected to initiate proceedings.
Also, parties are encouraged to mediate even during the course of proceedings. Under CPR 26.4 A, the courts are obliged to facilitate and refer the case to mediation should the parties agree to it. Lets evaluate the efficacy of mediation with the help of empirical data. As per Center for Effective Dispute Resolution (CEDR), in 2016, the aggregate settlement rate was 86 percent. Whereas, in 2017, the success rate hiked by 3 percent and the overall settlement rate was 89 percent in the civil-commercial mediation. The fruits of Woolf’s reforms are self-evident; it has successfully diverted substantial number of cases fit for ADR and also ensured the availability of court resources for the speedy disposal of controversies.
We have a great deal to learn from the efficacy of mediation in achieving effective dispute resolution and defeating delays. Lets revert back to our jurisdiction. In the past, various attempts to make effective use of mediation have been made in Pakistan — such as the promulgation of Small and Minor Offences Ordinance 2002, and incorporation of Section 89-A and Order X Rule 1-A in Civil Procedure Code 1908, but all have been in vain. No significant results were achieved because of the failure to understand the methodology of its effective usage.
Without understanding the contemporary techniques of mediation and fulfilling its prerequisites, any effort toward mediation is destined to fail. A holistic and scientific approach is needed in this regard. A fresh effort needs to be made by: establishing government backed civil-commercial mediation centers that work alongside courts, staffing qualified mediators with meticulous understanding of the process and modern techniques, and improvising the process to cater to the cultural needs of the society. Mediation, an antidote from the past, is a way forward. Particularly, in our society where mediation is, historically and culturally, a preferred form of dispute resolution.
The writer is a lawyer and partner at UMR Practice
Published in Daily Times, September 28th 2018.