Mediation At Local Level
The government has stepped up efforts for implementation of the legal provision related to judicial committee at the local level. The initiatives have been prompted, especially to clear the prevailing confusions in the provisions of Local Government (Operation and Management) Act 2074 that vests authority in the Judicial Committee both to facilitate mediated resolution of the disputes and give verdict on the disputes in case the process of mediation failed to resolve the issues. The Ministry of Federal Affairs and General Administration (MoFAGA) has developed the training modules and created a group of master trainers to provide orientation to the members of the judicial committee on their role and function related with dispute resolution at the local level.
It is learnt that a group of officials working for the district coordination committee with background on law have been handpicked for such training. Moreover, the government has formulated model rules to support and guide in connection with the framing of the local law for implementation of the provision. However, these efforts have not yielded desired outcomes as the legal provision related with dispute resolution has been characterised by complexity and sensitivity as giving verdict on the disputes at stake has broader political and social implications. It needs an intensive and on the ground continued support to build local capacity to resolve disputes for achieving win-win results and to deliver satisfaction to the parties involved in disputes. The rationale behind allocation of dispute resolution related competencies at the local level lies in the fact that the court procedures in Nepal are inaccessible and cumbersome often resulting in the miscarriage of justice. Hence, it is due to this fact the local justice delivery system has become popular in Nepal.
Needless to say dispute resolution has been embedded as an integral function of the local bodies for long. This is also continued in the multiparty democracy era too. The Local Self-governance Act 1999 that has been replaced by the current Local Government Operation and Management Act 2017 in its Section 33 and 101 had entrusted authority to VDCs and municipalities to resolve disputes at the local level. This function, according to the legal provision enshrined in the Local Self-governance Act 1999, had to be carried out by the trained mediators using the tools and techniques of interest-based negotiation. And the Village Development Committees and Municipalities had to create a panel of trained mediators as support mechanism to help resolve disputes. The mediators needed to facilitate the negotiation process of resolving disputes without determination of wrong and right. The outcome should be win-win and not win-lose as is the case with judicial award.
However, it is relevant to note the fact that the provision in the current local government Act differs from the LSGA provision. The judicial committee has been headed by the deputy mayor or vice chairperson of Nagarpalika and Gaupalika. Two other members in the judicial committee comprise the elected local assembly members chosen by the executive committee of the local level government. In fact the provision relating to judicial committee (Nyayik Samiti) is repetition of the similar provision that existed in the past especially during the erstwhile party-less Panchayat era. After the democratic change in 1990, reform was introduced to delink the elected representatives from the justice delivery functions through the provision of medi-arbitration panel. In fact, justice in Nepalese communities is understood not as a legally defined concept to enforce rights and punish the wrongdoer. It is rather understood as t reparation of disruption and restoration of broken ties. Moreover, it is directed towards nurturance of community feeling and good neighborliness.
As mentioned above, the mandate pertaining to dispute resolution especially giving verdict on the outcome of the dispute vested in local government at the local level is said to come into conflict with theory of separation of power. Local level governments are, by their constitutive and functional nature, the political institutions elected by the people through competitive elections. The role of dispute resolution is generally assigned constitutionally to judicial and quasi-judicial institutions in the multiparty competitive political setting, Not only the elected representatives but also people in the community may have their allegiance to one or other political parties which can prejudice their role as arbitrator of dispute. Moreover, Nepal’s diverse ethnic groups have their own self-governing practices, processes and mechanism to settle disputes arising in their respective communities. The ethnic groups such as the Tharus, the Gurungs, Magars and the Thakalis have their own informal institutions and practices to tackle interpersonal and intergroup disputes. They mostly avoid the involvement of the formal agencies and institutions like courts, quasi-judicial institutions and local bodies for resolving disputes.
Nepal is thus a case of legal pluralism where institutions and norms overlap in resolving disputes. The jurisdictions of formal state and informal institutions overlap and interact with each other as well. However, the mediation services have become popular in Nepal but these services cannot sustain without support and coordination of the local authorities like Gaupalika and Nagarpalika. The mediation serves to fulfill the needs and interests of the disputing parties. When the disputing parties collaborate together to determine the outcomes of the dispute with the support of mediators, it satisfies their needs and interests. Moreover, relationship between disputing parties becomes amicable and harmonious. But there is a need to reformulate the relevant provisions in the law and its bylaws in line with the principles and values of interest based mediation so that the elected representatives are separated from being involved in the services of dispute resolution by awarding verdict.