Ever-Increasing Backlog of Litigation: A Case for ADR in Pakistan

By Muhammad Imran, Staff Member, SAHSOL-LUMS and Sajjad Hussain, Advocate, Sindh High Court and LL. M Candidate, SAHSOL-LUMS

The Crisis of Prolonged Litigation: Pakistan faces an ever-increasing backlog of litigation that presents a serious challenge to the administration of justice. Thousands of litigants spend years, and sometimes decades, awaiting the final resolution of their disputes. This is not merely a judicial or administrative problem; it is also a social, economic, psychological, and institutional crisis. Prolonged litigation exhausts financial resources, destroys relationships, disrupts businesses, and frequently transforms manageable disagreements into permanent hostility. While courts will always remain indispensable, particularly in matters involving fundamental rights, criminal responsibility, and significant questions of law, it is unrealistic to expect conventional litigation alone to resolve every dispute arising within a society as large and complex as Pakistan.

It is in this context that Alternative Dispute Resolution (ADR) assumes particular importance. Mediation, arbitration, conciliation, and negotiation can provide faster, more flexible, and less adversarial mechanisms for resolving appropriate disputes.

The Story of Black Stone – A Prophetic Model for ADR: In ADR workshop, His Lordship Justice Syed Mansoor Ali Shah, former senoir most puisne Judge of Supreme Corut of Paksitan, who is one of staunched supporters of ADR had shared the story of concerning the placement of the Hajr-e-Aswad (the Black Stone) provides one of the most compelling illustrations of the philosophy underlying Alternative Dispute Resolution. When the reconstruction of the Kaaba was completed, the tribes of Makkah became involved in a serious dispute over who would have the honour of placing the Black Stone in its designated position. Every tribal chieftain regarded the task as a matter of prestige. Ironically, a noble responsibility became a potential source of serious conflict.

The Prophet Muhammad (peace be upon him) offered an extraordinary solution. He placed the Black Stone upon a cloth and invited representatives of all the tribes to lift it collectively. He subsequently placed the Stone in its proper position. The wisdom of this solution lay in the fact that every party became part of the process. No tribe was humiliated, no party was declared a loser, and a potentially violent conflict was resolved peacefully.

This episode offers an enduring lesson for modern ADR. The purpose of dispute resolution should not always be to identify a winner and a loser. Wherever possible, it should create a process through which conflicting parties can participate in reaching a mutually acceptable solution.

In a deeply religious society such as Pakistan, the principles of reconciliation, mediation, compromise, and peaceful coexistence deserve particular emphasis. Bringing disputing parties together to resolve their differences is not merely a legal exercise; in many respects, it is a noble and prophetic undertaking. ADR promotes peace, reduces hostility, restores relationships, and seeks to address the underlying causes of conflict.

The Human Cost of Prolonged Litigation: The consequences of prolonged litigation extend far beyond the courtroom. When disputes continue for years, their effects are felt by families, communities, businesses, and society as a whole.

First, prolonged litigation frequently transforms ordinary disagreements into deep and permanent hostility. Bitterness and resentment increase with the passage of time, particularly in family and property disputes. In some cases, conflicts are inherited by succeeding generations.

Second, prolonged litigation imposes a particularly severe economic burden upon weaker and vulnerable parties. Legal expenses, repeated court appearances, and the loss of productive time can cause serious financial hardship. A person who is the sole breadwinner of a family may be unable to provide for dependants while remaining entangled in lengthy proceedings.

The inequality between powerful and weaker litigants is particularly troubling. A wealthy or influential party may possess sufficient resources to sustain litigation indefinitely, whereas a weaker party may eventually abandon a legitimate claim because continuing the legal battle has become unaffordable. In such circumstances, delay itself becomes an instrument of oppression.

Third, prolonged litigation also carries serious psychological consequences. Litigants may experience anxiety, stress, emotional exhaustion, and uncertainty for extended periods. These consequences are particularly severe in matrimonial, custody, maintenance, inheritance, and other family disputes, where litigation can permanently destroy relationships. The adversarial process may also result in unnecessary personal humiliation. Parties sometimes make deeply personal allegations merely to obtain a legal advantage. The administration of justice must ensure that the legal process does not become an instrument for the destruction of personal dignity.

Fourth, there is also a widespread perception that influential individuals may sometimes use litigation to intimidate weaker members of society. A person may be forced to defend multiple proceedings for years, regardless of their ultimate merits. The process itself may consequently become a form of punishment.

A Survey-Based Case for ADR: The Role of Law Schools: The case for ADR should not rest merely upon theoretical arguments. It should be supported by systematic empirical research demonstrating the social, economic, and institutional costs of prolonged litigation. Academic institutions and law schools should play an important role in this process. Students at law Schools, particularly those enrolled in the LL.M programme, could undertake systematic surveys examining the consequences of prolonged litigation and the potential of ADR in different sectors.

Research groups could examine commercial, family, inheritance, property, labour, consumer, environmental, and community-level disputes. For example, surveys conducted among chambers of commerce and business communities could help identify the need for commercial arbitration and mediation. Over time, such initiatives could enable the Law School to develop an empirical database regarding the nature of disputes, their duration, the economic costs borne by litigants, and the suitability of particular disputes for ADR.

Such research would also reinforce the LL.M as an advanced research qualification. Students should be encouraged not merely to study existing literature but also to contribute to new knowledge. Leading law schools, particularly LUMS Law School, and other leading academic institutions can similarly serve as important think tanks for ADR reform. Through empirical research, policy papers, stakeholder consultations, and collaboration with the judiciary, legal profession, businesses, and civil society, universities can contribute meaningfully to the development of an effective national ADR framework.

Evidence is often more persuasive than rhetoric. Empirical research can demonstrate that ADR is not merely an alternative to litigation but an essential component of an effective justice system.

The Need for Private ADR Centres: Pakistan’s enormous and continuously increasing backlog of litigation requires a comprehensive response. Courts alone cannot realistically resolve every dispute arising within a society of Pakistan’s size and complexity. The establishment and strengthening of private ADR centres should therefore form an important component of justice-sector reform. Mediation, arbitration, conciliation, and other consensual mechanisms should be developed on a much wider scale.

Properly regulated private ADR centres, annexed or closely connected with the judiciary,  can reduce the burden upon courts while providing parties with faster, more flexible, specialised, and potentially less expensive mechanisms for resolving disputes. However, ADR cannot remain confined to a few isolated institutions or pilot projects. Pakistan requires a broad-based national movement involving the judiciary, legal profession, bar associations, universities, chambers of commerce, civil society, and federal and provincial governments.

Appropriate safeguards must also be developed. ADR should never become a mechanism through which weaker parties are compelled to surrender their lawful rights. Fairness, impartiality, voluntary participation, confidentiality, and access to competent neutrals must remain fundamental principles of any credible ADR system.

ADR and the Importance of Local Government: The promotion of ADR is closely connected with the strengthening of local government. Effective local institutions bring decision-making and dispute resolution closer to citizens and may help address conflicts before they develop into prolonged and destructive litigation.

Unfortunately, local government has historically remained one of the most neglected dimensions of democratic governance in Pakistan. Governments have often been reluctant to empower genuinely autonomous local institutions. A democratic trinity of governance, as coined by His Lordship Justice Shah in his monumental judgment i.e. Imrana Tiwana case, commonly knowns as Signal Free Corridor, comprising the federal, provincial, and local levels, is essential for the effective distribution of power. Democracy cannot remain confined to Islamabad and provincial capitals; it must reach villages, towns, neighborhoods, and communities.

Strong and autonomous local governments can provide accessible institutions capable of facilitating dialogue, mediation, and community-based dispute resolution. Accordingly, the promotion of ADR and the strengthening of local government should be viewed as complementary objectives.

Democracy, Governance and Institutional Responsibility: The crisis of delayed justice must also be understood within Pakistan’s broader political and institutional environment. Governments repeatedly promise reforms, yet many structural causes of judicial delay continue to persist. The ordinary citizen deserves to be treated as a rights-bearing citizen rather than merely as an individual whose importance is remembered during election campaigns.

Political leaders often make extensive promises while seeking electoral support but become inaccessible once they acquire power. Democracy, however, must not be reduced to the periodic acquisition of votes. It must ensure that public institutions genuinely serve the interests of the people. The integrity of democratic institutions and electoral processes is equally important. Where citizens lose confidence in representative institutions, democratic legitimacy is weakened. Political power must be exercised transparently, accountably, and in accordance with the interests of the people.

Pakistan’s constitutional history also demonstrates the complex relationship between judicial independence, institutional authority, and political power. Judicial independence is not merely a matter concerning judges and courts; it is an essential safeguard for constitutional government, fundamental rights, and the rule of law.

A culture of dialogue and institutional respect is therefore necessary not only in private disputes but also within the broader constitutional and political order.

Conclusion – Towards a Culture of Resolution: Pakistan’s crisis of prolonged litigation is simultaneously a judicial, social, economic, psychological, democratic, and constitutional crisis. Its consequences are borne disproportionately by ordinary and vulnerable citizens, while powerful parties may possess the resources necessary to exploit institutional delays.

ADR offers Pakistan an opportunity to rethink the administration of justice. Its philosophical foundations can be found in religious and moral traditions, including the prophetic example of resolving the dispute concerning the placement of the Hajr-e-Aswad. Its practical value lies in its ability to reduce hostility, preserve relationships, minimize costs, save time, and promote social peace.

However, the promotion of ADR requires more than legislation and occasional seminars. Pakistan needs a comprehensive national strategy involving empirical research, specialised training, effective public and private ADR centres, strengthened commercial arbitration and mediation, appropriate legal safeguards, and strong local governments.

Universities, particularly law schools, can play an important role in this transformation by producing research, policy proposals, and trained professionals capable of contributing to justice-sector reform.

The ultimate objective should be clear: Pakistan must develop a justice system that does not merely decide disputes after years of litigation but, wherever possible, prevents disputes from destroying relationships, livelihoods, families, and communities in the first place. In many cases, the greatest achievement of a justice system is not a judgment delivered after decades of hostility but a peaceful and dignified resolution that prevents hostility from becoming permanent.