Adopting a Structured Mandatory Pre-Trial Mediation System in Pakistan: A Comparative Proposal Based on Research Analysis on Victoria, Australia

Abstract

The civil justice system in Pakistan is characterised by long-term inefficiency mainly because it is stuffed with a large number of pending cases in civil courts. Such procedural stagnation is devastating to access to justice and confidence in the judiciary. This doctrinal legal research will respond to the urgent need for reform on the use of successful integration of mediation as part of the civil justice approach in Victoria, Australia. Based on a comparative legal analysis, it examines the legislative and institutional systems which have facilitated the mainstreaming of mediation in Victoria and the reduction of congestion in the courts. Based on this model, the paper aims to adopt a context-specific design for Pakistan; it only touches on the civil courts, which constitute the primary source of judicial backlog. The suggested remedy will involve modification of specific sections of the Code of Civil Procedure (CPC) to furnish judges in Pakistan with the power to refer relevant civil cases to be put under mediation under the procedure at specified stages, which is to be mandatory. The suggestion is to institutionalise mediation as a mandatory element of civil litigation, not require mediation as an option and in the periphery. The adoption of the proposed framework will facilitate case management, minimise delays, and encourage the resolution of disputes by mandating the incorporation of mediation into the operations of the court.