Landscape of Dispute Resolution

When you hear about the word landscape of dispute resolution, the first thing that comes to the mind of the people is litigation before a court of competent jurisdiction. However, the parties need to be made aware that the landscape of dispute resolution is wider. It includes along with litigation, arbitration and mediation.  

When one compares these three vehicles of dispute resolution, one cannot help but feel that there is a significant difference between all of them. If one compares litigation from arbitration, arbitration from mediation, without delving into details one can easily find that the litigation is long and adversarial process and it can go on and on. 

When one goes to the court your dispute goes to the public. When you are before a court you have justify what you want, you have to ensure that the evidence supports you, you have to hope that the other party does not bring about damaging facts about you and you have to pray that the judge understands what you want him to understand and he orders in your favor. One can’t help but notice that litigation is about a number of big ifs. 

Then when one reviews the process of arbitration, one can see that while it is another process out of the court but here again the decision lies in the third party’s hand as in litigation and much like litigation you have to justify, you have to substantiate and you have to verify whatever you are claiming from the other party and again while it is not public, it can be both as time consuming and cost heavy a process as litigation.  

Now, when you compare mediation with both litigation and arbitration, you will see that it is a flexible process and the main component of this is that it is a confidential process and at the same time it is a process that is driven by the parties and decision lies in their own hands.  The mediator is just facilitating and just pushing the process.  So it is the parties who are ultimately going to decide the end result of the dispute and unlike arbitration and litigation, it is bound to take less time and is usually going to end up with an end result within a week or two’s time. 

A perusal of the three processes points out that while litigation and arbitration are similar and time consuming and driven by third party decision, mediation is flexible, confidential, and party driven, it is a private proceeding where the parties are the masters of their own fate. 

So after comparing above one can’t help but think that the landscape of dispute resolution is moving towards mediation and now people have to think of this alternative solution to go for mediation, get their dispute resolved privately and get their dispute resolved with the confidentiality and at a substantially lesser time, lesser cost and at end of the day, they will be able to ensure that they don’t end up as adversaries with the parties for the rest of their life. 

When you see courts full of cases and you see people moving around seeking justice from the court but due to time over burden of court, they could are not able to get their rights, this eventually leads to delay of justice. It is a well-known acronym says that “Justice delayed, justice denied”.  When I see the system in Pakistan the lawyers, the judges, the litigants that is the troika which leads and drives the entire process in the courts. Unfortunately, with the litigants suffering neither the lawyer nor the judges are bothered to give justice to the litigants. 

In the modern society time is money and if you see the commercial disputes, an amount due today, being awarded to you after a substantial delay of 10 years renders the said amount meaningless because the money has devalued, things will move on and finally the parties realize that the process before the court which substantially incurred a cost was a mistake even though the court ended up awarding in the favor of the party. 

Another driving factor behind litigation is the inherent need in people to win, to fight, to get what they want and ensure that the same is built on the misery of their adversary. Unfortunately, in today’s day and age, the commercial world is world of building relationships, coexisting, working together and in such instances the wounds of litigation cannot be mended.  

In such cases, with the world changing, the need for people is to mend their ways, to seek mutual satisfaction, mutual success and in these cases, mediation, which strives for co-existence and party driven resolution, where both parties having to mutually agree and mutually resolve the dispute is the way to go about in case of resolution.  

                        author

Anwar Kashif Mumtaz

Mr. Anwar Kashif Mumtaz is an accredited mediator from The Centre for Effective Dispute Resolution (CEDR). He is also one of the founding members of Pakistan Mediator Association (PMA). His advisory offers guidance, by reviewing goals, objectives and progress of the organization. Anwar Kashif Mumtaz Advocate Supreme Court is a… MORE >

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