Mediation Law in Pakistan
Pakistan is not a signatory on any international treaties pertaining to mediation. The mediation law in our country is not based on any of these treaties either.The primary source of the law that relates to mediation is found in the amended version of the CPC, Civil Procedure Code 1908 with the relevant sections being 89-A and Rule 1A of Order 10. There are also provisions relating to conciliation and mediation found in the Small Claims and Minor Offences Courts Ordinance, 2002, the Industrial Relations Act, 2012, the Income Tax Ordinance, the Customs Act, and the Federal Excise Act.
Mediation Law in Pakistan: Obligations and mandatory provisions
Mediation isn’t obligatory in Pakistan. A court could refer a civil dispute to mediation as long as both parties agree to it but they cannot impose or compel mediation provisions on anyone.
There are currently no provision in the domestic mediation law that has to be considered in a mediation proceeding. Neither is there a provision to resolve disputes in a court-annexed mediation. As mentioned above, the courts can refer cases to mediation but all parties must agree to it. They can stipulate a time frame for the mediation to be completed within, which typically included the result being reported back to the court.
Mediation Law in Pakistan: Mediation and arbitration
Mediation can be combined with arbitration proceedings; med/arb, arb/med etc.
Arbitrators are fully aware of mediation and could be willing to transfer cases from arbitration to mediation of all parties agree. ADR, Alternative Dispute Resolutions, are still at the fledgling stage in Pakistan.Although the Industrial Relations Act offers conciliation as a tool for ADR in labor related disputes it is a route that is rarely used.
ODR or Online Dispute Resolution in Pakistan
There is currently no mechanism in place for online dispute resolutions in Pakistan. Neither is there any kind of online mediation service in place.
Mediation confidentiality in Pakistan
Mediation within Pakistan is recognized as a process which must be confidential. The courts of Pakistan won’t entertain any action filed when the basis of this in information which parties have shared during mediation. Courts consider these proceedings to be strictly confidential and therefore such actions would be a breach of that confidentiality.
In the same context, a mediator will never be called to give evidence before a court. Mediation agreements that were signed before the parties commenced mediation contain standard clauses whereby parties must agree that their mediator won’t be called on to give evidence in court.
In court referred mediation cases, and on conclusion of that mediation, the court won’t call for any kind of detailed report regarding what what said within that mediation. Should it fail, the mediator will release a simple statement to the court stating that there was no result and this is sufficient for the courts.
When a settlement has been reached that settlement is duly recorded and the court will pass judgment on it to make this settlement enforceable. In such a case, the contents of that judgment are no longer confidential for purposes of the court order.
Limitation periods in Pakistan
A mediation proceeding doesn’t stop or suspend the period of limitation in place for a court claim. Pretrial cases with are then referred to mediation could become time barred should the limitation period elapse. Parties can’t consent to waive limitation.
Mediation Settlements in Pakistan
Settlement agreements are in the nature of contractual agreements and therefore not subject to automatic enforcement but are on par with binding contracts. Breaching any agreed terms within a binding contract gives rise to causes of action and parties have to file an action in the court as well as proving such a breach with leading evidence.
A settlement agreement reached within mediation, irrespective of whether it was arrived at through court referred mediation or pretrial mediation, is enforceable by the settlement being filed in court and a judgment being obtained under the Code of Civil Procedure; CPC.
Once all parties have signed the settlement agreement it’s not possible to challenge, revise or withdraw the same except when the opposing party can show fraud, coercion, undue influence or misrepresentation.
After a settlement agreement has been signed by the parties, it is not possible to revise, withdraw or challenge the same unless the opposing party can show coercion, fraud, misrepresentation or undue influence.
Institutions for mediation in Pakistan
The biggest national mediation body is the Pakistan Mediators Association and consists of over 100 mainly CEDR, Center for Effective Dispute Resolution, accredited mediators.
The second largest mediation body in Pakistan is the Lahore Chamber of Commerce and Industries Mediation Center. Situated in the Punjab province, the center has around 65 mediators which are all CEDR trained.
The first, and therefore oldest, mediation centre in Pakistan is the KCDR; The Karachi Centre of Dispute Resolution. It is based in Sindh province and boasts about 55 mediators, all fully accredited.
Mediation styles in Pakistan
The styles of mediation can range from facilitative and process focused to the content focuses and evaluative. In other words, mediation styles differ greatly between mediators. Most however, due to their training, are very aware that these aren’t separate camps so to speak but are at different ends of the spectrum that is made up of possible mediation interventions that are dependent on the circumstances and facts of each case as well as depending on the choices made by the mediator during the different stages of the mediation process.
Mediators will use a combination of caucus or private and joint sessions during the mediation process. The choice of the joint or private sessions very much depends are how far the parties are from the potential zone of agreement.
Co-mediation proceedings in Pakistan
It all depends on the parties whether a co-mediator is used and a mediator may suggest this possibility either before or after the mediation has commenced. Co-mediation costs more and for this reason the majority of parties chose not to use it.
There are no restrictions on who parties can invite to the mediation sessions in terms of tax consultants, advocates etc. Most of the lawyers who have chosen to be present during the opening phase will opt to leave their clients with the mediator to continue the process without them. They tend to rejoin the process later down the line once the court work has been concluded or when their parties request their presence. There is no bar in place on the calling of witnesses and experts to the mediation sessions.
Specific mediation procedures and dispute and conflict management systems in Pakistan
Dispute managements systems which also involve mediation aren’t common practice within Pakistan. Nether published or reported information is readily available regarding any companies having a dispute management system in place for the resolution of conflicts relating to employment matters or anything else.
The model articles of association of an LLC, Limited Liability Company, that were published by the Securities and Exchange Commission of Pakistan have a clause relating to dispute resolution which refers potential disputes between directors, management and shareholders to mediation.
The rising popularity of mediation clauses in Pakistan
The popularity of mediation clauses is rising all the time in regards to the drafting of contracts. At present there is no special requirement for an mediation clauses nor any court decisions which refer to any escalation clauses.
There is no legal requirements pertaining to the contents of a settlement agreement between the parties and mediator., the only restriction being that the parties can’t interfere with third party rights.
The parties are under no obligation to conclude the agreement between the parties and the mediator or between the parties involved and they are free to finish the mediation with or without a settlement.
Costs of mediation in Pakistan
Pakistan offers no official fee scale that has be used by the mediator and/or the parties and the fees vary between the mediators. The mediation centers, however, do fix their own fee schedules.CPLC and ICAB and CPLC mediation proceedings are conducted without any charge to the parties. Mediators who are member of the Pakistan Mediators Association’s panel are free to set their own fees. Courts frequently organize mediation weeks for family disputes or small claims on the pro bono basis.
Regulation of mediators in Pakistan
Pakistan currently has no specific regulations in place for mediators and the market is entirely self-regulating. Foreign mediators are permitted to visit Pakistan in order to mediate subject to obtaining the necessary visa. Those foreign nationals who work full time in Pakistan must have a work permit and be registered with the Pakistani tax authorities.
Mediator training and appointment in Pakistan
Please note that there have been significant recent developments in this area recently as discussed below :
(1) ADR Mediation Accreditation (Eligibility) Rules, 2023
S.R.O. 210 (I)/2023, issued by the Federal Government, establishes the ADR Mediation Accreditation (Eligibility) Rules, 2023, in exercise of powers conferred by the Alternate Dispute Resolution Act, 2017. The rules outline the eligibility criteria for ADR Centers and mediators seeking accreditation to provide mediation services.
Key Points of the Rules:
- Title and Commencement: The rules are called the ADR Mediation Accreditation (Eligibility) Rules, 2023, and they come into force immediately. Definitions from the Alternative Dispute Resolution Act, 2017, and its rules are applicable.
- Eligibility Criteria:
- ADR Center Accreditation: An ADR Center providing mediation services can be eligible for accreditation if it adheres to an end-to-end mediation process framework. This framework can be either recommended by an organization listed in the Annex to the rules or developed by the ADR Center itself, subject to approval by the accreditation committee. The ADR Center must ensure its mediators are trained and certified by organizations listed in the Annex or certified trainers authorized by these organizations. The ADR Center should have a distinct legal personality from its members and must have suitable premises with required facilities for conducting mediations.
- Mediator Accreditation: An individual seeking accreditation as a mediator must apply according to the form-B annexed to the rules. The mediator’s eligibility is linked to their training and certification by organizations listed in the Annex or trainers authorized by these organizations.
- Empanelment with High Court: For ADR Centers or mediators wishing to empanel with the High Court for court-referred mediations, additional requirements specified by the High Court in a circular will apply.
- Application Process: ADR Centers and individual mediators seeking accreditation must submit their applications in the prescribed forms (Form-A for ADR Centers and Form-B for mediators).
- Annex: The Annex to the rules contains a list of organizations whose mediation process frameworks and training certifications are recognized for eligibility purposes. The organizations include:
- International Mediation Institute
- Centre for Effective Dispute Resolution
- Civil Mediation Council of the United Kingdom
- Note: The Government, in consultation with the High Court, may add more organizations to this list.
The ADR Mediation Accreditation (Eligibility) Rules, 2023, aim to regulate and ensure the quality and standards of ADR Centers and mediators providing mediation services. Compliance with the outlined criteria is crucial for accreditation, emphasizing the significance of professional and recognized mediation practices in Pakistan.
(2) S.R.O. 211 (I)/2023 Alternative Dispute Resolution (Accreditation) Rules, 2023
In exercise of the powers conferred by section 25 read with section 4 of the Alternative Dispute Resolution Act, 2017 (XX of 2017), the Federal Government is pleased to make the following rules:
- Short title and commencement. – (1) These rules may be called the Alternative Dispute Resolution (Accreditation) Rules, 2023.
(2) They shall come into force at once.
- Definitions.- (1) In these rules:
- (a) “Act” means the Alternative Dispute Resolution Act, 2017 (XX of 2017);
- (b) “accreditation”, and its cognate expressions, mean a formal recognition by the Government that an ADR Centre or a Neutral is qualified to provide the ADR services specified in the notification of accreditation;
- (c) “accreditation eligibility rules” means one or more sets of rules specifying the eligibility criteria for accreditation of ADR Centres and Neutrals;
- (d) “accreditation committee” bears the meaning given in rule 4;
- (e) “court-referred” means a dispute referred for ADR by a court or a tribunal subject to the supervisory jurisdiction of the High Court; and
- (f) “High Court” means the Islamabad High Court.
(2) Words and expressions defined in the Act and used in but not defined in these rules shall have the same meaning as given in the Act.
- Accreditation and Notification. – (1) There will be no restriction on the number of accredited ADR Centres or accredited Neutrals. All applications meeting the prescribed accreditation requirements will be allowed.
(2) For the purposes of section 4 of the Act, the Government shall, within 15 days of recommendation for accreditation by the accreditation committee, notify in the official Gazette accreditations of ADR Centres and Neutrals.
(3) All notified ADR Centres and Neutrals undertaking court-referred work shall comply with the ADR practice directions issued by the High Court from time to time.
- Accreditation committee- (1) ADR Centres and Neutrals will be accredited by an accreditation committee comprising the Registrar of the High Court, the Secretary of the Law and Justice Division, and one member nominated by the Federation of Pakistan Chambers of Commerce and Industry.
(2) The accreditation committee will hold an accreditation meeting once a calendar quarter for action on the accreditation applications.
(3) The Law and Justice Division shall act as the secretariat for the accreditation committee.
(4) When the accreditation committee is satisfied that there is a functional and responsible self-regulating representative institution of the ADR professionals in place with an institutional framework conforming to global best practices, it will yield its functions to that body on a date published in the official Gazette, and shall cease to exist on that date. From and after such date, all references in these or any other rules or instruments to the accreditation committee shall mean the institution aforesaid.
- Accreditation eligibility rules and notification. – (1) ADR Centres and Neutrals will be accredited on meeting the eligibility criteria prescribed in rules made for the purpose.
(2) Different sets of rules for eligibility may be made for sub-speciality ADR practice areas such as mediation, conciliation, arbitration, and early neutral evaluation.
(3) An ADR Centre or Neutral practising more than one sub-speciality shall meet the respective eligibility criteria for all its sub-speciality practice areas.
- ADR Register.- (1) Each ADR Centre and Neutral shall maintain an accurate and up to date register of all ADR cases handled by it, with such particulars as may be specified from time to time by the Government in consultation with the accreditation committee.
(2) The register will be kept in both paper and electronic forms. The paper form will have reduced particulars. The electronic form will have enhanced particulars. The electronic form shall be reliable, with data integrity and security measures of a standard generally followed by small businesses in case of sole-practitioner Neutrals, and small-to-medium size businesses in case of ADR Centres.
(3) The ADR registers shall be preserved for a minimum of five years and shall be open to inspection by the accreditation committee.
(4) The ADR registers shall not record any confidential information communicated by the parties in anticipation of or during the ADR proceedings.
(5) Each ADR Centre and Neutral shall send a copy of its most up to date register in the specified format to the accreditation committee as of the last working day of each calendar quarter.
- Suspension or revocation of accreditation. – (1) An accreditation may be suspended or revoked by the Government on the recommendation of the accreditation committee if the ADR Centre or the Neutral:
(a) is rendered incapable of performing the ADR services due to physical, mental, financial, or legal disability;
(b) is found in willful violation of the applicable ADR process framework by which it is bound, which in the opinion of the accreditation committee is of a grave nature and requires disciplinary action;
(c) has alleged or proved against him a criminal, civil or disciplinary charge, involving moral turpitude, which in the opinion of the accreditation committee is of a grave nature and requires disciplinary action; or
(d) ceases to meet the applicable eligibility criteria.
(2) A de-notified ADR Centre or Neutral shall cease to market its ADR services. The ADR matters pending with the ADR Centre or Neutral shall, at the option of either party to the dispute, be transferred to another accredited ADR Centre or Neutral on such terms as are mutually agreed between the parties and the transferee ADR Centre or Neutral. The transferor ADR Centre or Neutral shall be bound to return all information, in any form whatsoever, in its possession or control to the respective parties and shall not keep a copy thereof.
(3) A suspended ADR Centre or Neutral shall not market its ADR services as an accredited ADR Centre or Neutral until the suspension is lifted. During suspension, it shall conduct only such ADR work as may be permitted by the accreditation committee in writing. If the suspension lasts more than three months, unless given one and only extension by the accreditation committee for another three months, the accreditation will be revoked by publication in the official Gazette.
- Removal of difficulties. – (1) The Government may, by notification in the official Gazette, issue such instructions, not inconsistent with the Act or these rules, as may be expedient for removing difficulties encountered in the application of these rules.
(2) The Secretary, Law and Justice Division, may issue clarifications on questions arising during the course of implementation of these rules on requests made by a Court, an ADR Centre or a Neutral.”
This legal note serves as a formal communication and record of the Alternative Dispute Resolution (Accreditation) Rules, 2023, issued by the Government of Pakistan, Ministry of Law and Justice, and is effective as of the 21st of February, 2023.
