Alternative Dispute Resolution in Family Disputes: Tradition, Statutory Framework, and Institutional Practice in Pakistan

Abstract

The article explores the processes of alternative dispute resolution (ADR) and how they are being used in family disputes in Pakistan, in a context that is both rooted in a long-standing tradition of informal adjudication, and is being shaped by developments in statute. The panchayat, the jirga and local elders were the bodies that resolved the conflicts over the land that makes up present-day Pakistan conflicts of families, divorce and property not the formal courts, for centuries. As time went on, jurists and legislatures have tried to institutionalize these consensual techniques to alleviate overburdened courts and to eliminate the time and expense of extended litigation. This article examines the main modalities of ADR in detail, and charts the reception of the same in the subcontinent from the Indian Arbitration Act 1899 up to the Arbitration Act 1940 and the recent statutory and institutional developments in Pakistan. Special focus is paid to the constitutional basis of dispute resolution, domestic and international arbitration regimes, conciliation mechanism under the Muslim Family Laws Ordinance 1961 and the Musalihat Anjuman, and the efforts of the institutions like the Karachi Centre for Dispute Resolution. The article contends that ARD has a rich cultural heritage in the region, significant merits of speed, economy and confidentiality has been present but its formalization in Pakistan has been somewhat disjointed, influenced by the obsolescence of the existing arbitration law, over-entanglement of judicial involvement and the lack of public awareness. It finds that mediation and conciliation can provide a way of maintaining the integrity of the family unit and provide accessible justice, provided that appropriate safeguards are put in place to protect the rights of vulnerable parties, particularly women, in the family context.

Keywords: Family Disputes, Mediation, Arbitration, Conciliation, Musalihat Anjuman.