Emphasis On Mediation

Mukti Rijal

 

Nepal observed the Mediation day (Melmilap Diwas), the other day, to mark the enforcement of the law relating to mediation in the country. It was almost five years ago that the law relating to mediation was put into effect heralding a new dimension in the process and mechanism of dispute resolution in the country.
Nepal is among the few countries in the world to introduce such a comprehensive umbrella law to enhance and institutionalise mediation as an instrument of alternative dispute resolution. Among the nations in South Asia, Nepal is next to Sri Lanka to introduce the law relating to mediation to promote and enhance the mechanism of consensus based dispute resolution both at the judiciary and community. Recourse to the mechanism of the alternative dispute resolution like mediation and conciliation enables assists and facilitates the disputing parties to arrive at the win-win and durable resolution of the conflict and weed out the root causes of antagonism and contradiction.
The mediated resolution of disputes addresses substantive issues underlying the conflicts so that embittered relationship between the disputing parties is restored to enhance justice, peace and harmony. The important point to note in the Nepali law relating to mediation has been that it has created the Mediation Council (Melmilap Parishad) as the core sovereign regulatory body mandated and competent to set policies and standards for the promotion and development of the mediation and conciliation in the country. The council is headed by the senior incumbent justice of the Supreme Court of Nepal, and it formulates, reviews and updates training curriculum for mediators, strategises and implements measures in enhancing the practices of mediation in the country. It is under the initiative of the Council that the observance of the Mediation day has been commenced solely with a view to emphasise and popularise the values and norms of mediation and conciliation in the country.
Releasing a statement to mark the occasion of the Mediation day last Sunday , chairman of the Mediation Council Justice Iswor Prasad Khatiwada referred to the efforts undertaken for last fifteen years to launch, highlight and consolidate the application of mediation in creative resolution of disputes and stressed the need to work in unison to strengthen and institutionalise mediation in such domains as community, commerce and trade and court. The federal constitution of Nepal stipulates about the importance of the alternative dispute resolution mechanism including mediation and conciliation for an enhanced access to justice.
Moreover, Article 217 of the constitution provides for Judicial Committee and provides that the three member panel headed by the deputy chief of municipality (Nagarpalika) and rural municipality( Gaupalika) shall settle the prescribed category of disputes at the local level. Further, sections 46 to 53 of the Local Governance Act 2017 provide an elaboration of the constitutional provision on local dispute resolution to be executed at the behest of judicial committee through recourse to mediation and conciliation.
In fact , the provision related with judicial committee in the Local Government Operation act 2017 has been envisaged with an intent to enhance the devolved system justice delivery at the local level though it is also criticised as being akin to the practices of the partyless Panchayat polity when elected authorities were entrusted to carry out the dispute resolution. The adjudicative functions was allotted to the elected local Panchayats through legal enactment to decide on right or wrong when cases were brought to them. But dispute adjudication by the elected Panchayats was assessed as a failure at that time as elected politicians were not trained to ensure fair and due process to deliver justice. Therefore the local government operation act 2017 provides for mediation as a tool for dispute resolution at the community level.
According to the act, mediation centers need to be set up at ward levels to support the functions of the judicial committee and make dispute resolution services available and accessible to the people. In fact, the deputy mayors as the senior elected functionaries of the executive branch of the local government have been entrusted with several functions and responsibilities in addition to delivery of dispute resolution services. Section 16 of the Act lists several key and crucial responsibilities of the deputy mayors that have crucial relationship for overall social and political development at local level.
Undoubtedly, there has been a very positive development at local level following the local elections held one and half years ago. Around ninety four per cent of the deputy mayors in the country are women and they represent different political formation and social groups. This has been the outcome of the progressive provision to support positive discrimination in the new constitution of Nepal. The role of deputy mayors as coordinator of the judicial committee is being viewed with positive note especially due to the expectations that the issues pertaining to gender justice, women empowerment and social justice would be receiving fair hearing and positive treatment.
However, adjudicating disputes entails the task of drawing clear lines between the right and wrong, guilty and innocent, winners and losers with reference to examination of evidences and provisions of the law. The deputy mayors are neither trained in adjudicating disputes nor have temperament to act as judge and deliver verdict in an adversarial and competitive mode. It is therefore necessary to place emphasis on the practices of conciliation and mediation (Melmilap) so that judicial committees can facilitate justice delivery process using consensus based win-win tools like mediation and conciliation.
Indeed, Justice, peace and harmony at the local level underlie the concept of mediation, and this was underpinned in the message issued by the chairman of the Mediation Council on the occasion of Mediation day this year.
(Rijal, PhD, contributes regularly to TRN and writes on contemporary political, economic and governance issues) 

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