Let me begin with a confession, even as I write in defence of mediation. The growing enthusiasm for mediation in Pakistan stems, at least in part, from a collective loss of faith in our courts’ ability to deliver timely justice.
In Pakistan, justice delayed has become justice routinely denied. Our courts carry a backlog approaching 2.4 million cases, the overwhelming bulk of it pressing down on the district judiciary, where a single judge may be carrying many hundreds of files at once. Many citizens enter the justice system with hope only to find themselves trapped in years of procedural delay.
So, when the critics of mediation charge that our justice system has failed to deliver, I do not contest the indictment. I plead guilty. Guilty as charged. Mediation, for me, is less a preference than a response to a system that has run out of room. That said, it is rightly pointed out that there could be alternative reforms to address the backlog; nonetheless, mediation remains central and one option of reform worth pursuing.
It was in this spirit that a report titled ‘Mediation Before Litigation: A Reform Package for Labour and Commercial Disputes in Islamabad’ was recently launched by RSIL & LAS. The event drew mediators, advocates and members of the legal community, and what made it valuable was both the applause and the scepticism. The room offered both, and the doubts sharpened our collective understanding of what it will actually take to put a durable mediation structure on its feet. Four challenges stood out and any honest case for mediation has to meet them squarely.
The awareness problem comes first, because nothing else works without it. An ordinary litigant learns about mediation from one of two sources: the lawyer who represents them or the court to which they have come for relief. Both channels are obstructed. A lawyer paid to litigate has little obvious incentive to steer a client toward a process that shortens the matter and, with it, the fee. And the bench is not yet equipped to fill the gap. Judges have received neither sufficient training in mediation nor a settled practice of explaining it to the parties before them. The result is a reform that the very people it depends upon are poorly placed to champion.
The financial question is just as stubborn and it cuts in two directions. From the litigant’s side: why pay for an additional step on the road to a courtroom they may reach anyway? From the professional’s perspective, the disincentive is even sharper. A capable lawyer asked to serve as a mediator must do so under a statutory fee ceiling (currently fixed at Rs35,000), when the same hours spent in litigation could earn a multiple of that. We are asking our most experienced practitioners to take a pay cut to staff the system that will compete with their own practice. Goodwill will carry a pilot project for a while. It will not sustain a national framework.
Then there is the matter of authority. For an innocent litigant, the court, whatever its delays, represents something solid: the seal of the state, a forum that can compel, a place where the system is presumed to be watching. Mediation conducted outside that frame can feel like the opposite. To be sent from the court to a private mediator can seem, to a frightened party, like being placed at the mercy of a stranger with no robe and no power to enforce. That instinct is not irrational. It is precisely why the institutional design of mediation matters as much as its legal text.
And finally, the gravest objection: access to justice. On its face, a mandatory pre-litigation mediation requirement looks like a barricade across the courthouse door. If a citizen must mediate before they may sue, are we not conditioning a constitutional right on a procedural toll? Article 10A guarantees a fair trial and due process, and any reform that appears to ration that guarantee deserves the hardest scrutiny.
The access objection dissolves once the design is understood. What the reform makes mandatory is the attempt, never the settlement. No party is compelled to agree to anything; they are required only to sit at the table once before proceeding to court. Fail to settle and the right to litigate is restored in full. Urgent matters are carved out: where a litigant needs an injunction or interim protection, the court hears that application first and the mediation referral is sequenced after. Access to justice is essentially sequenced.
The other three challenges can be addressed through deliberate institutional choices. On awareness, the first thing to recognise is what legislation can and cannot do. A statute mandating mediation imposes change from the top down, and such change is inherently fragile because the people at the top keep changing. A reform that depends on the disposition of a particular minister, secretary, or judge lasts exactly as long as they remain in their chair.
Sustainable change runs the other way: from the ground up, lodged in the habits and expectations of litigants, advocates, and the public who use the system every day. The legislation is necessary, but it is only the scaffolding. The building is an informed public. That means refusing to rely on self-interested intermediaries and reaching litigants directly through grassroots initiatives and mandatory orientation for judges so the bench becomes an informed referrer rather than a reluctant one. The aim is a public that asks for mediation, not merely a law that requires it.
On finance, the instinctive fix: lift the cap, pay mediators the market rate, is the wrong one for this moment. Mediation in Pakistan is in its infancy. A litigant is already being asked to accept an unfamiliar process before reaching the court they trust; load a high mediator’s fee on top of that and the unfamiliar becomes the unaffordable and the door we are trying to open swings shut. At this stage, a modest, capped fee is not a flaw in the design. That means that the early mediators will have to bear some of the burden themselves, to take less than their hours are worth, for a while, so that a public good can be built.
It is an unglamorous ask, but every institution worth having was carried at the start by people who served it before it could pay them. The cap is not permanent. Once mediation has taken root, once the culture of use exists, the flat cap can give way to a tiered schedule that rewards mediators by the value and complexity of the dispute.
On authority, the cure is court-annexation: mediation housed on court premises, with a published panel and transparent case management, so that the institutional legitimacy of the court travels with the process rather than being left at its door.
None of this is automatic. Each fix demands funds, training and sustained political will and the instant temptation will be to legislate the framework and declare the job done. That temptation must be resisted. A statute can compel parties to the table. It cannot, by itself, make them arrive informed, make the mediator worth meeting or make the litigant believe they are in safe hands. If mediation is to take root in Pakistan rather than wither away as one more well-drafted disappointment, we must build the institution with the same care we bring to the law.
The confession with which I began is also a warning: we reached for mediation because the courts failed. We should not let mediation fail the same way.
The writer is a lawyer based in Islamabad.
