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Training report by : Neelam Shujahuddin

Building on the momentum of its successful training sessions conducted in the past, the 6th Forum of Pakistan Ombudsman Training Session on Alternative Dispute Resolution conducted on 29th December 2023 in FPO Secretariat, Islamabad was symbolic of the commitment of Forum of Pakistan Ombudsman to become a facilitator of knowledge exchange and advancement of good governance and best practices in the realm of Ombudsmanship in Pakistan.

Presided over by Dr. Arslan Subuctageen, Director General of Trainings at the FPO, the session was graced by the presence of the Secretary of the Azad Jammu and Kashmir Mohtasib, Mr. Absar Hussain Jarral, and Assistant Director of IT Wing from Wafaqi Mohtasib, Dr. Sohail Ahmed Phatak. The training session delivered online via Zoom was attended from the officers of Federal and Provincial Offices of Ombudsmen from all across Pakistan. Enhancing the session’s global outreach were international participants from Azerbaijan, Hong Kong, and Indonesia.

Syed Akbar Hussain, the trainer of the 6th Forum of Pakistan Ombudsman Training Session, stands as a distinguished figure in the field of Alternate Dispute Resolution (ADR). His extensive background and achievements in ADR were a focal point of the session. Hussain, who holds an LL.M. in Private Law from Istanbul, has been recognized internationally for his expertise in ADR. His nomination and shortlisting for the National Mediation Award by the UK in 2020 underscore his prominence in the field.

Hussain’s journey in ADR is marked by significant milestones. He introduced Pakistan’s first ADR platform, ADR Initiative LLP, a pioneering step in the country’s legal landscape. His enrollment as an Arbitrator in the Shanghai Arbitration Commission in 2022 and representation of international clients before the Singapore Arbitration Center further attest to his global reach and proficiency.

In Pakistan, Hussain has been instrumental in promoting ADR as a viable and effective mechanism for dispute resolution. His efforts to educate and inform about ADR, especially in the context of Pakistan’s legal system, have been noteworthy. He has actively worked towards addressing structural inadequacies and procedural irregularities in the traditional legal system, advocating for ADR as a more efficient alternative. Hussain’s passion for ADR led him to study the mechanism in various jurisdictions worldwide, aiming to develop a framework of best practices suitable for Pakistan. His understanding of ADR is comprehensive, encompassing mediation, conciliation, Panchayat, negotiation, and Jirga, all aimed at resolving disputes outside the conventional court system.

In the 6th FPO Training Session, Hussain provided an in-depth exploration of the essence and goals of Alternate Dispute Resolution (ADR). He emphasized that ADR offers a flexible and efficient alternative to traditional legal processes, addressing the inherent challenges of the current justice system.

Hussain highlighted the structural inadequacies and procedural irregularities that have become major roadblocks in achieving prompt and effective justice. He pointed out that the existing system often fails to deliver speedy resolutions, leading to a general acceptance of these inefficiencies. Educating people about ADR is crucial, as it offers a means to secure rights outside the jurisdiction of traditional courts.

The ADR Initiative LLP, launched in 2019 under Hussain’s leadership, aimed to popularize ADR in Pakistan. Hussain’s passion for ADR led him to study the mechanism in various countries, allowing him to develop a framework of best practices adaptable to Pakistan’s unique needs. He emphasized that ADR is not a one-size-fits-all solution; it encompasses various forms like mediation, conciliation, and negotiation, each aiming to resolve disputes outside the court system.

Hussain started off by explaining the difference between adjudication and conciliation in a dispute. Adjudication allows a judge or arbitrator to issue an order or opinion on a dispute, while conciliation focuses on resolving disputes through mutual agreement. The ultimate goal of ADR is to minimize legal involvement, offering a more direct and personal approach to dispute resolution. ADR, in its various forms, provides a tailored approach to dispute resolution. It caters to the unique nature of each case, whether it involves workplace disputes, family matters, harassment, commercial issues, insurance, or banking matters. Hussain’s insights revealed that while ADR may not always be the workable solution, especially in complex cases with numerous stakeholders, it offers a valuable alternative to traditional courtroom litigation. Therefore, it is imperative to understand the importance of ADR’s flexibility and its potential to transform the landscape of dispute resolution in Pakistan and beyond.

Hussain also brushed upon the concept of ‘mediation’ which he defined as a voluntary process where parties to a dispute are assisted by a neutral third party in negotiating a settlement. He emphasized the importance of mutual consensus in the dispute resolution process, noting that simply issuing an order does not necessarily resolve a dispute. True resolution, according to Hussain, occurs when parties take ownership of their problems and reach a consensus.

In discussing the differences between ‘Facilitative Mediation’ and ‘Evaluative Mediation’, Hussain explained that there is no one-size-fits-all approach in mediation. Each case has its own merits and demerits, and the mediation process must be tailored accordingly. Facilitative Mediation involves guiding parties to a solution they devise themselves, with minimal intervention from the mediator. This approach ensures neutrality and prevents any impression of bias, making it a highly effective form of dispute resolution.

While discussing Arbitration, Hussain stated that is another crucial form of ADR, which begins with an agreement between the parties. Hussain highlighted that arbitration is particularly effective in situations requiring a more formal resolution process, yet outside the traditional court system. Arbitration involves a more structured approach, with an arbitrator making decisions based on the evidence and arguments presented. This method offers a more formal yet flexible alternative to traditional court proceedings, making it a valuable resource in the ADR toolkit.

In context of relevance of ADR in Pakistan, Hussain commented that ADR has gained prominence in Pakistan due to the inefficiencies and delays often associated with the traditional court system. The existence of traditional informal dispute resolution mechanisms like Jirga and Panchayat reflects the country’s cultural and social fabric while addressing the need for timely justice. These traditional mechanisms are reflective of the fact that the concept of ADR is not new; it has roots in ancient practices where community elders or leaders would mediate disputes. Over time, this evolved into more structured forms like arbitration, mediation, and negotiation.

ADR’s growth in Pakistan is also a response to the global trend of seeking alternative methods for dispute resolution. This trend is driven by the desire to reduce legal costs, speed up the resolution process, and create more satisfactory outcomes for the parties involved. In the Pakistani context, ADR has been embraced as a way to alleviate the burden on the judiciary and provide more accessible justice to the public.

Mr.Hussain also discussed two models based on Psychology that are revolutionizing the field of Alternate Dispute Resolution (ADR): the SCARF Model and SMART Testing. These models represent a significant advancement in understanding and implementing effective ADR strategies.

The SCARF Model, which is an acronym for Status, Certainty, Autonomy, Relatedness, and Fairness, focuses on the psychological elements of the parties involved in a dispute. Hussain explained how this model operates on triggering the brain’s reward or threat response systems. A positive response, seen as a reward, releases oxytocin and dopamine, creating a sense of well-being. Conversely, a negative response perceived as a threat triggers adrenaline, leading to a fight or flight response. By understanding these psychological triggers, mediators can effectively change the mindset of the parties regarding the conflict at hand. Hussain elaborated on the Reward State Activators and Threat State Activators, crucial elements for mediators to monitor during the resolution process.

Complementing the SCARF Model is SMART Testing, a model based on specificity, quantification, attainability, relevancy, and time constraint. This approach guides mediators and arbitrators to target specific areas of improvement or address particular needs in a dispute. Goals set within this framework must be quantifiable, realistic, and aligned with broader business objectives, with a clear deadline for resolution. This structured approach ensures measurable progress and successful dispute resolution.

Talking about ADR in relation to operations of an Ombudsman Office in Pakistan, Hussain stated that the Mohtasib’s adoption of the Informal Resolution of Disputes (IRD) system, as empowered by the Presidential Order of 1983, is a significant stride towards institutionalizing ADR in Pakistan. This system embodies the global shift towards alternative and informal dispute settlements, tailored to circumvent the formalities of traditional court proceedings.

Hussain, through ADR Initiative LLP, has underscored the critical need for adaptable ADR frameworks that account for Pakistan’s cultural diversity and organizational variances. Rejecting a one-size-fits-all approach, Hussain’s work with the Federal Board of Revenue and in sectors such as banking, insurance, and family law exemplifies the initiative’s commitment to localized and sector-specific ADR models, particularly advocating for ADR in tax disputes where arbitration has proven more efficient globally.

Hussain’s forward-thinking vision for ADR in Pakistan anticipates a collaborative evolution, with stakeholders across the board contributing to the development of specialized ADR processes and training. He projects a future where ADR centers, modeled after successful trade dispute resolution hubs in commerce chambers, become widespread. These centers would not only promote mediation as the default dispute resolution mechanism but also signify Pakistan’s alignment with global ADR practices, fostering an ecosystem where disputes are settled through dialogue and mutual consensus, leading to a more just and cohesive society.

Dr. Arslan Subuctageen, the Director General of Trainings at Forum Of Pakistan Ombudsman Secretariat, commended Hussain for his comprehensive knowledge and meticulous approach to arbitration, acknowledging his significant contributions to the field and invited the participants to put forward any queries they may have to Mr. Hussain.

In response to a query from Mr. Aleem Jaffri from Federal Insurance Ombudsman regarding the current laws governing ADR in Pakistan, Hussain discussed the legal framework for arbitration in Pakistan, highlighting two key legislations: The Arbitration Act of 1940 and the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act of 2011. He acknowledged the need to modernize the Arbitration Act but praised its clarity and established judicial precedents. The Act outlines procedures for arbitration, allowing for either court intervention or direct agreement between the parties. The Recognition and Enforcement Act, aligning with the New York Convention of 1958, has bolstered Pakistan’s stance in international arbitration by ensuring the enforceability of foreign judgments and awards. This development has significantly improved investor confidence in Pakistan’s legal system.

Hussain expressed optimism about the future of ADR in Pakistan, foreseeing wider adoption of mediation practices and the establishment of ADR Centers by Mohtasib Offices. He believes these advancements will significantly improve the efficiency and global alignment of Pakistan’s dispute resolution mechanisms.

Answering a query from an officer from Balochistan Ombudsman Secretariat about the relationship between criminal law and ADR in Pakistan, Hussain highlighted the complex interplay between these two domains. He emphasized that crime impacts both the state and the individual, necessitating the involvement of both in any ADR process. This approach has gained traction in recent years, with efforts to resolve disputes at the police station level before formal criminal proceedings commence, especially in cases of compoundable offences where settlements can be made through compensation. However, Hussain acknowledged the challenges in integrating ADR into criminal law, particularly for non-compoundable offences, due to the need for a structured approach that balances state interests and individual rights. His insights underscore the potential of ADR in criminal cases while recognizing the limitations and complexities of its application in the Pakistani legal system.

Another query was raised by Dr. Arslan Subuctageen, Director General of Trainings at FPO, who inquired about the optimal duration and success rate of Alternate Dispute Resolution. Hussain responded by highlighting the variability in ADR’s success rates, generally noting a high success rate. He emphasized the importance of voluntary participation in mediation, pointing out that a key indicator of success is when clients do not return with the same dispute, suggesting a lasting resolution.

Hussain cited an example where a 15 year-long dispute was resolved in a 45-minute mediation session, demonstrating ADR’s efficiency. He explained that the choice between arbitration and mediation, the two primary ADR processes, depends on the case specifics, with mediation often being more straightforward. He also stressed the value of qualified mediators or arbitrators in achieving successful outcomes.

The training session was brought to a meaningful close by Dr. Arslan Subuctageen’s remarks where he thanked Syed Akbar Hussain for his insightful and expert guidance throughout the session, as well as the national and international participants for their active engagement in the session. He emphasized the invaluable nature of the session, highlighting how it had not only enriched the participants’ understanding of Alternate Dispute Resolution but also forced us to consider new avenues for its application in the Ombudsman Institutions in Pakistan. Dr. Arslan expressed his eagerness and optimism towards the future initiatives that Hussain would undertake.

Forum of Pakistan Ombudsman’s 6th Training Session concluded with a forward looing perspective and offered valuable insights for the Ombudsman Offices of Pakistan and international participants as it urged to embrace more collaborative and effective methods of resolving disputes. The future of ADR, as envisioned by Hussain, is not just a national narrative but a global one, with implications for the methods utilized in dispute resolution around the world.

(Author is a lawyer and incumbent Assistant Advisor OIC Ombudsman Association)