The Khyber

Pakhtunkhwa
Alternative Dispute
Resolution Rules,
2017
Draft proposal submitted in ADR Conference, held in November,
2017 at Islamabad

AMJAD ZIA SIDDIQEE

Additional District & Sessions Judge, Khyber Pakhtunkhwa
 The Khyber Pakhtunkhwa Alternative Dispute Resolution,
Rules, 2017

The Khyber Pakhtunkhwa Alternative Dispute Resolution, Rules,

2017
WHEREAS it is expedient to encourage and regulate alternative dispute
resolution methods;

WHEREAS it is expedient to ensure expeditious dispensation of justice by

adopting alternate methods; and

WHEREAS it is expedient to devise mechanism and framework for

alternative dispute resolution methods to ensure effective implementation
and enforcement of section 89-A C.P.C and section 14 of Small Claims and
Minor Offences Courts Ordinance, 2002;

THEREFORE, in exercise of power conferred by section 89-A C.P.C. and

section 42 of Small Claims and Minor Offences Courts Ordinance, 2002,
the Competent Authority is pleased to notify and adopt following rules for
the purpose aforesaid:

1. Short title, extent and commencement. – (1) These Rules may be

called the Khyber Pakhtunkhwa Alternative Dispute Resolution Rules, 2017.

(2) These rules shall apply to any civil, family or criminal dispute whether
sub-judice before any Court or tribunal or not.

(3) These rules shall come into force at once.

2. Definitions. – (1) Unless there appears anything to the contrary, in

the subject or context, -

a) ‘Alternative Dispute Resolution [ADR]’, shall mean and

include any lawful process, other than regular Court
proceedings, opted by parties, with or without intervention
of Court, for resolving their dispute;

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b) ‘Arbitration’, shall mean and include a process by which

parties, through a written agreement, appoint one or more
neutral persons for resolving their dispute, the person so
appointed may be called an ‘arbitrator’;

c) ‘Conciliation’, shall mean and include a process wherein a

duly qualified and authorized person encourages the parties
to resolve their dispute voluntarily, the person facilitating the
process may be called as ‘conciliator’;

d) ‘Mediation’, shall mean and include a process wherein a

neutral third person, called a mediator, acts to encourage
and to assist the parties in resolution of by identifying issues,
fostering joint problem-solving, exploring settlement
alternatives;

e) ‘Negotiation’, shall mean and include two party discussion

for resolving the matter in controversy. The person
facilitating the negotiation may be called a ‘negotiator’;

f) ‘Summary trials’ shall mean and include Court proceedings

wherein the litigants present their case in an expedited
manner in the presence of facilitator nominated by both
parties, with the leave of Court.

(2) All other expressions used but not expressly defined in these rules,
shall have the same meaning as may be provided in any other enactment
for the time being enforced.

3. Recognized Alternative Dispute Resolution methods. – The

recognized dispute resolution methods shall include settlement through
negotiations, arbitration, mediation, conciliation, facilitation, summary
trials.

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4. Immunity to persons acting under the rules. - A duly authorized

or Court approved mediator, conciliator, negotiator or arbitrator shall have
immunity in the same manner and to the same extent as a presiding officer
of a civil Court.

5. Discretion in use of rules. – Subject to provisions of any other law

for the time being enforced, a presiding judge may refer any dispute to
mediation, arbitration or conciliation:

Provided that binding arbitration, mediation or conciliation may be

ordered upon the agreement of the parties, consistent with provisions of
these rules or any other law for the time being enforced.

6. Jurisdiction of proceeding. -At all times, during the course of any

alternative dispute resolution proceeding, the dispute remains within the
jurisdiction of the Court. For good cause shown by any of parties and upon
hearing on the issue, the Court at any time may terminate the alternative
dispute resolution process.

7. Record keeping. – The mediator, arbitrator, negotiator or

conciliator shall maintain record of all proceedings carried out by and
before him.

8. Service of process. – Provisions of C.P.C relating to issue and

service of process, discovery and inspection of documents, shall mutatis
mutandis apply to proceedings before mediator, arbitrator, negotiator or
conciliator.

9. Purpose of mediation etc. – (1) Mediation, conciliation or

arbitration opted under these rules involves the confidential process by

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which a neutral, acting as a mediator, selected by the parties or appointed

by the Court, assists the litigants in reaching a mutually acceptable
agreement.

(2) The role of the mediator, conciliator or arbitrator is to assist the parties
in identifying issues, reducing misunderstanding, clarifying priorities,
exploring areas of compromise, and finding points of agreement as well as
legitimate points of disagreement.

(3) Any agreement reached by the parties is to be based on the autonomous

decisions of the parties and not the decisions of the mediator.

10. Case Selection. – (1) At any stage of any civil or criminal

proceedings, any Court may on its own motion or upon written request of
any party, refer any dispute to mediation, conciliation or arbitration:

Provided that the Court shall consider the willingness of the parties to
mutually resolve their dispute, the ability of the parties to participate in the
mediation process, the need for discovery and the extent to which it has
been conducted.

(2) If a case is ordered for mediation, it shall remain on the Court diary and
record.

11. Enlisting of mediators, conciliators and arbitrators. – (1) Any

person, having prescribed qualification and expertise, who intends to serve
as a registered mediator, conciliator or arbitrator under these rules, shall
apply to District & Sessions Judge of the district concerned in the manner
hereinafter provided.

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(2) The application shall be accompanied by a fee of rupees 5000/- with

annual renewable fee of rupees 1000/-.

(3) The District & Sessions Judge shall maintain categorized list of
registered mediators, conciliators and arbitrators, which shall include
following information:

(a) ability of the person to mediate, conciliate or arbitrate civil, or

criminal or family dispute;

(b) the Court in which the person desires to mediate, conciliate or

arbitrate;

(c) the type of litigation the person desires to mediate, conciliate or

arbitrate; and

(d) availability of person i.e. part time or full-time.

(4) The District & Sessions Judge may remove a registered mediator,
conciliator or arbitrator from its registry for failure to meet or to maintain
the requirements of these rules or for non-payment of fees.

(5) A registered mediator, conciliator or arbitrator shall maintain a current

business and residential address and telephone number with the District &
Sessions Judge.

(6) Failure to maintain information required under the rules may expose
him to cancellation of his registration.

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12. Agreement to mediate etc. – (1) Prior to commencement of any

mediation, conciliation or arbitration, under these rules, the parties shall
sign a written agreement to mediate, conciliate or arbitrate.

(2) The agreement shall contain specific clauses as to confidentiality,

acknowledge of judicial immunity to the mediator provided under these
rules.

(3) The agreement shall also provide that all provisions of any mediation
settlement agreement shall be written and signed by each person and any
attorneys participating in the mediation.

13. Selection of Mediators etc. – (1) Upon an order referring a case to

mediation, or conciliation, or arbitration, the parties may, within three
days, select a mediator, conciliator or arbitrator from the list maintained by
District & Sessions Judge.

(2) If parties failed to select any registered person within stipulated period,
the Court shall designate three mediators, or conciliators or arbitrators
from the list of registered persons so maintained by District & Sessions
Judge.

(3) A person selected to serve as a mediator or conciliator or arbitrator may

choose not to serve for any reason and the Court may replace him by
repeating the process of selection.

(4) At any time, a party may also request the Court to replace the mediator
for good cause shown.

14. Qualifications of mediators, conciliators and arbitrators. –

Subject to such other conditions as may be laid by District & Sessions

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Judge, any person desirous of registering as mediator, or conciliator or

arbitrator shall, -
a) be a registered legal practitioner, enrolled with Khyber
Pakhtunkhwa Bar Council to practice in the High Court;

b) have acquired basic education in human phycology;

c) have acquired mediation training from any institution

recognized by Higher Education Commission and approved by
the Peshawar High Court;

Provided that District & Sessions Judge of the district concerned may
nominate also any judicial officer to serve as a mediator in a case pending
before any other Court of the district.

15. Mediation costs. – (1) Any registered person appointed by the

Court to carryout mediation, conciliation or arbitration, shall be entitled to
hourly remuneration of mediation or conciliation or arbitration.

(2) Costs of mediation or conciliation or arbitration shall be borne by

parties as may be determined by the Court depending upon the complexity
of litigation, the skill levels needed to mediate the litigation, and the
litigants' ability to pay.

(3) Unless otherwise agreed, the parties shall pay their mediation costs
within ten days after the close of each mediation session.

16. Mediation etc. procedure. - The mediator, conciliator or arbitrator

shall:
(ii) advise the parties of all persons whose presence at mediation,
conciliation or arbitration might facilitate settlement; and

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(iii) in child related matters, ensure that the parties consider fully the
best interests of the children and that the parties understand the
consequences of any decision they reach concerning the children; and

(iiii) inform all parties that the mediator, conciliator or arbitrator, -

(a) is not providing legal advice,

(b) does not represent either party,

(c) cannot determine how the court would apply the law or rule in
the parties’ case, or what the outcome of the case would be if the
dispute were to go before the court, and

(d) recommend that the parties seek or consult with their own legal
counsel if they desire, or believe they need legal advice; and

(ivi) explain the difference between a mediator’s role and a lawyer’s role
when a mediator, conciliator or arbitrator knows or reasonably should
know that a party does not understand the mediator’s role in the matter;
and

(vi) not advise any party, -

(a) what that party should do in the specific case, or

(b) whether a party should accept an offer; and

(vii) advise a party who self-identifies or who the mediator, conciliator or

arbitrator identifies as a victim after screening of domestic or family
violence, that the party will only be required to be present at mediation
sessions in accordance with following rule.

17. Mediation etc. conferences. – (1) The parties and their attorneys
shall be present at all mediation, conciliation or arbitration sessions
involving domestic relations proceedings unless otherwise agreed:

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Provided that at the discretion of the mediator, conciliator or arbitrator

non-parties to the dispute may also attend any or all sessions of the
conference.

(2) A party who self-identifies or whom the mediator, conciliator or

arbitrator identifies as a victim of domestic violence shall be permitted to
have a support person present at all sessions. The mediator, conciliator or
arbitrator may postpone or terminate the mediation, conciliation or
arbitration at any time when a participant becomes disruptive to the
process.

(3) All parties, attorneys with settlement authority, representatives with

settlement authority, and other necessary individuals shall be present at
each mediation, conciliation or arbitration conference to facilitate
settlement of a dispute unless excused by the Court.

(4) A child involved in a domestic related proceeding, by agreement of

the parties or by order of the Court, may be interviewed by the mediator
out of the presence of the parties or attorneys.

(5) Mediation, conciliation or arbitration sessions shall not be open to the

public.

(6) The mediator, conciliator or arbitrator may meet jointly or separately

with the parties and may express an evaluation of the case to one or more
of the parties or their representatives.

(7) The mediator shall intimate the parties that the mediator’s evaluation is
not legal advice.

18. Confidential statement of case. – (1) Prior to commencement of

mediation, conciliation or arbitration conference, each party shall submit
to the mediator a confidential statement of the case, which shall include:

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(a) the legal and factual contentions of the respective parties as to

both liability and damages;
(b) the factors considered in arriving at the current settlement
posture;

(c) the status of the settlement negotiations to date; and

(d) videos, and other exhibits or evidence.

(2) The confidential statement of the case shall at all times be held
privileged and confidential from other parties unless agreement to the
contrary is provided to the mediator, conciliator or arbitrator.

19. Termination of mediation etc. - (1) The mediator, conciliator

or arbitrator shall terminate or decline mediation, conciliation or
arbitration whenever he believes that:

(a) the meditation process would harm or prejudice one or more

of the parties or the children;

(b) the ability or willingness of any party to participate

meaningfully in mediation is so lacking that a reasonable
agreement is unlikely;
(c) due to conflict of interest or bias on the part of the mediator,
resolution of dispute is not possible; or

(d) mediation, or conciliation or arbitration is inappropriate for

any other reasons.

(2) At any time, after completion of two sessions any party may
terminate mediation.

(3) The mediator shall not state the reason for terminating or declining
mediation except to report to the Court, without further comment, that the
mediator is terminating or declining mediation.

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20. Report of Mediation etc. – (1) Within ten days after the mediation,
conciliation or arbitration the mediator, conciliator or arbitrator shall
submit his report to the Court.

(2) The report shall indicate that an agreement was or was not reached in
whole or in part or that the mediation or conciliation or arbitration was
extended by the parties.

(3) With the consent of the parties, the report may also identify any
pending motions or outstanding legal issues, discovery process, or other
action by any party which, if resolved or completed, would facilitate the
possibility of a settlement.

(4) If an agreement is reached, in whole or in part, it shall be reduced to

writing and signed by the parties and their counsel and shall then be filed
in the Court.

(5) In the event of any breach or failure to perform any act under the
agreement, upon motion, and after hearing, the Court may impose costs
upon the party concerned.

21. Mediator’s preparation and filing of documents. (1) The

Mediator shall review each document presented by parties and drafted
during mediation.

(2) When the document(s) are finalized to the parties’ and any counsel’s
satisfaction, the mediator, conciliator or arbitrator shall attach said
documents with his report.

22. Confidentiality and admissibility. - (1) Subject to the provisions

of Qanoon-e-Shahadat Order, 1984, mediation, conciliation or arbitration
sessions shall be confidential and closed to all persons other than the

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parties on record, their legal representatives, and persons invited or

permitted by the mediator.

(2) The confidentiality of mediation shall not be waived by any party or

mediator, conciliator or arbitrator.

(3) A mediator, conciliator or arbitrator shall not be subject to process

requiring the disclosure of any matter occurring during the mediation
except in a separate matter as required by law:

Provided that evidence discoverable outside of mediation, conciliation or

arbitration shall not be excluded merely because it was discussed or
presented in the course of mediation, conciliation or arbitration.

23. Summary trial. – (1) Summary trial process shall be employed only
when there is reason to believe that it will enhance the expeditious
resolution of disputes and preserve judicial resources.

(2) Soon after institution of any civil or family suit or submission of

criminal challan, the Court may, on its own motion or upon written
request of any party, select any civil, criminal or family case, which could
not be referred to mediation, conciliation or arbitration, for summary trial.

(3) The provisions of Order X to XIV of Civil Procedure Code, 1908, sections
250-A, 260 to 265 of Criminal Procedure Code, 1898 and Small Claims and
Minor Offence Ordinance, 2002, shall mutatis mutandis apply to all such
proceedings carried out by Court for summary trials.

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24. Accountability and discipline. - Any person registered with the

District & Sessions Judge as mediator, conciliator or arbitrator, shall be
removed from panel if he, in the opinion of Court concerned, violates of
any of the provisions of these rules.

25. Miscellaneous duties of mediator etc. – After nomination by the

Court, it shall be the duty of mediator, conciliator or arbitrator to:
(1) Consistently communicate with the parties and their parties;
(2) notify participants of the date, time, and location for the
process, at least three days in advance, unless a shorter time
period is agreed by the parties;

(3) describe the applicable ADR process or, when multiple

processes are contemplated, each of the processes, including
the possibility in non-binding processes;

(4) in family related matters, distinguish the ADR process from

therapy or marriage counseling;

(5) disclose the anticipated cost of the process;

(6) advise that he does not represent any of the parties;

(7) advise to disclose any past, present or known future;

(8) disclose professional, business, or personal relationship with

any party, insurer, or attorney involved in the process, and

(9) disclose any other circumstances bearing on the perception

of the mediator’s, conciliator’s or arbitrator’s, impartiality;

(10) advise parties of their right to obtain independent legal

counsel;

(11) advise that any agreement signed by the parties constitutes

evidence that may be introduced in litigation;

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(12) disclose the extent and limitations of the confidentiality of

the process consistent with the other provisions of these
rules.

(13) to avoid misrepresenting any material fact or circumstance

nor promise a specific result or imply partiality;

(14) preserve the confidentiality of all proceedings, except where

otherwise provided;

(15) promote mutual respect among the participants throughout

the process;

(16) avoid coercing any party for resolution of dispute;

(17) avoid making any substantive decision for any party except as
otherwise provided for by these rules.

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APPENDIX

EXISTING SECTION 89-A C.P.C:

89 A. Alternate dispute resolution:- The Court may, where it

considers necessary having regard to the facts and circumstances of
the case, with the object of securing expeditious disposal of a case in
or in relation to a suit, adopt with the consent of the parties
alternate dispute resolution method, including mediation and
conciliation.

AMENDMENT PROPOSED VIA DRAFT CIVIL LAW REFORMS ACT,

2017:

Substitution of section 89-A, Act V of 1908. – In the said Code, for

the existing section 89-A, the following shall be substituted:

“89-A. Alternate Dispute Resolution. – (1)

Notwithstanding contained anything in this Code or any
other law for the time being in force, where it appears to the
Court that the dispute is fit to be settled through a process of
alternate dispute resolution method including arbitration,
mediation or conciliation, the Court shall, with the consent
of parties before it, in all such cases, at any stage of
proceedings, resort to any of these methods for its amicable
settlement in summary manner.

(2) Any of the parties before Court, may also apply to the
Court for settlement of dispute in the manner provided
under sub-section (1).

(3) Where alternate dispute resolution method is adopted by

Court, the costs of arbitration, mediation or conciliation shall
be borne by all contesting parties equally. In all other cases,
these costs shall be borne by the party seeking resolution of
dispute through ADR.

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(4) For the purpose of this section, District Judge of the

District concerned, on the recommendations of Citizen Court
Liaison Committee and Bar Bench Liaison Committee, shall
maintain, annually renewable, list of professionally trained
arbitrators, mediators and conciliators.

(5) The arbitrators or mediators or conciliators, so appointed,

shall conclude the matter referred to them within forty-five
days.

(6) The parties to proceedings shall ensure their presence

before arbitrators or mediators or conciliators. In case of
failure, the matter shall be referred to Court concerned for
further appropriate order in terms of Order XVII of this
Code.

(7) After conclusion of its efforts, the arbitrators or

mediators or conciliators, shall immediately return the
matter to Court concerned for further appropriate order in
the manner provided under any of the provisions of this
Code.

(8) Notwithstanding the provisions of any other law for the

time being in force, the mediator, conciliator or arbitrator
shall not be required to appear as a witness in any arbitral or
judicial proceedings with respect to a dispute that is or was a
subject matter of mediation, conciliation or arbitration.

(9) The mediator, conciliator or arbitrator shall not be

authorized to act as representative or counsel of a party in
any mediation, conciliation, arbitral judicial proceedings with
respect to a dispute that is or remained before him for
resolution. Nor he shall be authorised to disclose any fact
before any forum which give rise to any doubts as to his
impartiality or credibility relating to matter in question.

(10) No appeal or revision shall lie from a decree or final

order passed on the basis of recommendations of mediators,
conciliators or arbitrators.

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(11) The Government shall, with the consultation of High

Court, make rules for carrying out purposes of this section.

In Order X, -
For the existing rule 1-A, the following shall be substituted:
“1-A. AMICABLE SETTLEMENT OF DISPUTES. – Subject to
the provisions of section 89-A of this Code, the Court shall, -
(1) in each case, before settlement of issues, with the
consent of parties refer the matter to mediator, conciliator or
arbitrator, for resolution of dispute amicably and in summary
manner.

(2) Upon referring the matter under sub-rule (1), the

parties to proceedings shall be bound to ensure their
presence before mediator, conciliator or arbitrator, as may be
directed.

(3) The mediator, conciliator or arbitrator, shall adopt all

measures recognized by any law for the time being in-force,
to resolve matter in controversy between parties within
stipulated period.

(4) If in consequence of such efforts, a settlement is

reached between parties, it shall forthwith be reported to the
Court concerned for pronouncement of judgment and decree
in summary manner.

(5) If mediator, conciliator or arbitrator, fails, it shall

forthwith be reported to the Court concerned together with
consolidated report specifically indicating the factors and
elements resulting failure in such efforts.

(6) The Court shall, on receipt of report in terms of sub-

rule (5) of this rule, pass appropriate order against the party
responsible for such failure.”

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