Non-Litigative Settlement

Mukti Rijal

The Local Government Act enacted six months ago in line with the federal constitution has several provisions that have far-reaching consequences in the management of local community affairs and functions. One of such provisions that has caught attentions of all the stakeholders and also bred some kind of controversy has been the one dealing with local dispute resolution at the behest of judicial committee at the local level. One of the reasons why this has been made out to be a matter of discussion and also given contradictory meaning and explanation has been because of the fact that the legal provision itself lends to some imprecision and confusions.

Mediation
Generally, the provision combines both mediation and arbitration with a plain and simple connotation that the local judicial committee should arbitrate over the dispute in case of non-settlement through the use of mechanism. However, interpretation of the provision is done by some quarters to require the judicial committee to follow the court like procedures to resolve the disputes in case the attempt to settle the dispute through mediation failed. The court procedure calls for the adoption of the process and methodology followed for finalisation of litigation in the court.
Litigation involves a lengthy, transaction based and cumbersome procedure. This is not feasible to be followed by the judicial committee elected by the people at local level. In most cases the deputy mayors or vice chairpersons of the municipality have been the women who are not knowledgeable enough to understand the complexity of handling procedures involved in litigation. In fact, adjudication is by its very the innate nature goes against the rural ethos and socio-psychological formation of the local communities in Nepal. A person who picks up quarrel too often and brings dispute against his or her neighbour is generally dubbed as a recalcitrant or mischief monger. People are always alert and cautious and, therefore, tend to keep themselves on guard against such deviance. Disputes in the rural communities are explained and interpreted as socially deviant, discrepant behaviours and conduct.
It is also widely held that indulging in disputes brings dishonour not only to family but also to one’s own clan and lineage as well. People in the rural communities of Nepal mostly tend to conceal or suppress the occurrence of disputes in the families. They try to keep and hide them strictly in private realm. Disputes are settled in a way that no outsider should know about them. The popular saying in the communities goes “One does not share the bread, but one shares the blame”. Insulting a person’s family, caste and even village amounts to insulting him or her. Not only the confession on the charge of wrongdoings but even the simple allegations against a members of distant relation are perceived to impair honour and social prestige of all extended families (Khandan), relatives and kinfolks.
Showing conformity to customs and traditions offers a sense of security to villagers and non-conformism runs the risk of being ostracised or castigated. Harmony in behaviour of individuals is necessary for smooth running of a rural community. This is achieved by making the individuals conform to a settled pattern of behaviour in society. This is to say society attempts to ensure the most complete conformity possible. Social pressure is strongly felt in rural community where everyone knows everyone else. News travels quickly in villages along established connections and networks of relatives. The various modes of “social pressures” against the wrongdoers exist in communities. They may differ from one place to the other or the ethnic groups to the other groups. No official sanctions, fines and punishment compel to conform to terms of settlement.
In fact, good relationship among the members in community has economic and social value. Mutual aid relationships based on complementarity is very crucial for people to act and relate to each other. Participation in local networks and attitudes of mutual trust make it easier for the groups to reach to decisions and implement collective action. In the communities where a certain pattern of behaviour is expected from individuals for the benefit of the group, social pressures and fear of exclusion can induce these individuals to conform and act in obedience to the expected behaviour. People in the community give priority to collaborate and keep relationships based on harmony undisturbed. They try not to let social fabric and sanctity tear apart.
Conciliatory practices have continued and sustained in the communities to endure relationships and carry out dispute resolution. Reciprocity and trust are the basis of this relationship without which the communities cannot pool in their capacities, resources and possibilities jointly and live together. Social life is indeed a mesh of interpersonal connection and linkages. Social norms are strengthened through interactions and interconnection. The explicit and written codifications of norms that are found in statutory book are not always the norms the people follow in their day to day life. The norms and values based on maintenance of mutual relationship and interconnectedness are intrinsic to the Nepalese social life and community order.

Simpler mode
With this general discussion on the social psychology and tradition of dispute resolution entrenched in the local communities, we can safely assume that litigation and court adjudication cannot align with and suited to the resolution of disputes at the local level. The judicial committee should, therefore, not be required to follow the judicial procedures for resolution of the disputes. The adherence to the simple procedure of the mediation-arbitration, not adjudication and litigation, will make the judicial committee enabled to resolve the disputes at the local level in a simple way.

 

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