There is a growing rhythm in Pakistan’s legislative and judicial discourse, one that carries the steady drumbeat of “Alternative Dispute Resolution” (ADR) as a modern solution to the persistent strain on our justice system. With the passage of time, however, that rhythm is becoming more directive than persuasive.

Mediation, once introduced as a parallel pathway, is now increasingly treated as a procedural station through which parties are expected, and in some cases, required, to pass. The Alternative Dispute Resolution Act, 2017, and the rules made by respective High Courts in supplementation to the same, reflect a broader institutional shift; courts are no longer merely encouraging ADR; they are embedding it into the litigation process itself.

To be clear, the merits of mediation as a dispute resolution tool are not in doubt. For many categories of disputes—commercial disagreements, family settlements, long-standing civil claims—it can be faster, less adversarial, and more efficient. But the growing practice of judicially nudging, and occasionally requiring, parties to attempt mediation raises important questions about consent, timing, and suitability.

We now see civil courts referring matters to mediation almost as a matter of course. In theory, parties retain the right to decline, but in practice, a refusal to mediate must be justified, and is at times viewed with suspicion. This is a subtle but meaningful shift from offering mediation as an alternative to positioning it as a procedural obligation. It introduces a layer of uncertainty for litigants who may come prepared to argue the merits of their claim, only to find themselves first having to satisfy a threshold of “procedural willingness.”

The trend has begun to extend into more specialised areas of law. The Finance Act, 2024, for instance, has reintroduced and expanded section 134A of the Income Tax Ordinance, 2001, re-emphasising the use of ADR in tax matters. While this provision is framed as a means of expediting dispute resolution and reducing litigation, the structure of the newly empowered ADR Committees, and the significant role of the Federal Board of Revenue in shaping both the process and outcome, suggests that what is being promoted as alternative may, in substance, become determinative. That balance deserves closer examination.

It is not the spirit of ADR that practitioners question; it is the manner in which that spirit is being formalised. The best mediations are those which arise from mutual willingness. Where parties are voluntarily motivated to resolve their disputes, they approach the process with the mindset and flexibility required to make it succeed. But where mediation becomes a procedural hurdle—one that must be crossed before a court will even entertain a claim—the quality and integrity of the process risks being diluted.

We must also acknowledge the institutional gaps that remain. While rules and panels have been notified, and ADR centres designated, the depth and consistency of practice remains uneven. The training of neutrals, the clarity of procedure, the assurance of confidentiality, and the enforcement of mediated outcomes are all works in progress. Against that backdrop, encouraging parties to mediate is sensible; insisting that they do so as a precondition to litigation may be premature.

As dispute resolution lawyers, we are not averse to evolution. We understand the strain our system bears, and we recognise the promise ADR holds. But justice, in our tradition, is not just about outcomes—it is about process. Parties must feel that their path to the courts is certain, accessible, and governed by clear and predictable rules.

ADR must be offered, facilitated, even incentivised. But it must not be made obligatory in form while remaining underdeveloped in substance.

Let us proceed carefully, not to resist reform, but to ensure that reform aligns with the constitutional imperative of access to justice. The courtroom must remain open to all, and entry must not be made contingent on rituals whose benefits, while well-theorised, are yet to be universally realised.

Uzair Shafie
The writer is an advocate by profession.