Mediation Practice Direction (Civil) Rules, 2023

 Mediation Practice Direction (Civil) Rules, 2023

To regulate the practice and procedure of Courts in relation to

Mediation in Civil Disputes

Mediation as a method of alternate dispute resolution is given statutory recognition by the Alternate Dispute Resolution Act 2017 (the Act). In furtherance of the Act, rules are being notified from time to time.

For mediation as a sub-specialty of alternate dispute resolution, the following rules have thus far been notified by the Federal Government:

(i) Alternate Dispute Resolution (Accreditation) Rules, 2023.

(ii) ADR Mediation Accreditation (Eligibility) Rules, 2023.

In furtherance of the supervisory function of the High Court, the Islamabad High Court issues these rules in the exercise of its powers under Article 202 of the Constitution of the Islamic Republic of Pakistan, 1973, to be known as the Mediation Practice Direction (Civil) Rules 2023, and to be practiced by all Courts within the jurisdiction of the Islamabad High Court.

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Contents

1 Notified Mediators; Notified ADR Centres

2 Consent to Mediate

3 Decree on Settlement Agreement

4 Court-referral without a suit

5 Inconclusive Mediation

6 Mediation Register

7 Annex – Mediation Consent Form

1 Notified Mediators; Notified ADR Centres: (1) Except for sufficient cause recorded in the order referring the dispute to mediation, Court-referred mediations in civil disputes should be referred for mediation by mediators notified under the Act, practising individually or under the aegis of an ADR Centre notified under the Act.

(2) The expression ‘Mediator’ henceforth in this Practice Direction means a mediator notified under the Act, practising individually or under the aegis of an ADR Centre notified under the Act.

(3) Notwithstanding sub rules (1) & (2), mediations in family cases may be referred to ‘agreed upon persons’1, who are not notified mediators. Such agreed upon mediators should preferably be the trusted elders of the families.

2 Consent to Mediate: (1) On the first appearance of a party, the Court shall direct such party to sign and file a Mediation Consent Form (per the Annex) for the parties’ respective stances on mediation to be brought on record.

(2) The Court shall also cause the parties to sign and file a Mediation Consent Form in cases already filed where the recording of evidence has not commenced. For the avoidance of doubt, the Court shall on the parties’ joint request refer the parties to mediation regardless of the stage the case has reached.

(3) Where the parties agree to mediate, the Court will refer the parties to mediation and the parties’ agreement to mediate shall be the foremost consideration for the Court.

(4) The Court’s assessment of ‘impossibility of mediation success’ and ‘intricacy of a question of fact or law’ per sections 3(1)(b) and (c) of the Act should entail a very high threshold of Court’s satisfaction to lean against mediation and, barring exceptionally strong reasons, should not override the parties’ willingness to mediate, it being understood that the essence of mediation process is for the parties to be able to find a workable solution regardless of the underlying intricacies of fact and law.

(5) Where a party declines to mediate, the order sheet will reflect the Court’s observations on the reasonableness of the refusal to mediate, and the order on costs at the conclusion of the trial will factor in an unreasonable refusal to mediate, not as a penalty, but as a reasonable estimate of the litigation costs the consenting party would have avoided if the case had gone to mediation, basing such estimate on the statement of litigation costs filed by the parties under the Costs of Litigation Act, 2017. This order will be made regardless of the party refusing mediation being successful in obtaining judgment in its favour2.

1 Section 5 of the Alternate Dispute Resolution Act, 2017

2 Section 35(1)(iii), Costs of Litigation Act, 2017

3 Decree on Settlement Agreement: (1) When mediation leads to a settlement, the settlement shall be reduced to writing as a Settlement Agreement, duly witnessed, and signed by the mediator and by the parties or their duly authorized representatives. It is mandatory to file the Settlement Agreement with the Court for Court-referred mediations3, and optional for non-Court-referred mediations4.

(2) The Court shall on notice to the parties pass judgment and decree in terms of the Settlement Agreement5, recording in the decree that it was passed in terms of the Settlement Agreement without formal adjudication by the Court and is executable6 as a decree by consent.

4 Court-referral without a suit: (1) Court-referred mediations include mediation referrals by Court on joint application by the parties without a suit filed by either party7. Such applications are to be registered as suits for record management purposes.

(2) The parties must demonstrate to the Court for their application being considered that they have applied, without success, to all notified ADR Centres for mediation, and the Courts shall not be requested, without good cause, to perform this function of ADR Centres.

5 Inconclusive Mediation: If mediation in a pending case does not lead to a Settlement Agreement within the timeframe stipulated in the Act, the case will be re-listed in the cause list of the Court for judicial proceedings to resume. It is clarified that there is no bar on either party or the Court proposing mediation again and the parties resorting to mediation at a later stage during the proceedings.

6 Mediation Register: Each Court will maintain a register of mediation referrals and will transmit the following particulars to the Registrar of the High Court on a monthly basis by the first week of the succeeding month:

i. number of mediation referrals, with referral dates,

ii. number of applications received and disposed of under section 8 of the Act

iii. number of successful mediations, reckoned from the date of decree.