Mediation Centres At The Local Level
Conflict or dispute is an alienable part of human life. There is virtually no society where conflict does not exist. The incidence of conflict is more frequent in societies inhabited by many racial groups than in those inhabited by a few racial groups. But development takes place at a faster rate in the former societies than in the latter. There are also various tools available that are used for settling such conflict. In fact, conflict is ineluctable and should be settled promptly for the benefit of the parties involved.
Although disputes are solved through the litigation process, many disputes are still solved out of court. Nepal has a long history of settling disputes without resorting to court proceedings. Even in many rural areas of the country now, disputes are settled by village elders (mukhiya) or gentlemen. The dispute resolution mechanism exercised by the village elders is informal but has been deep-rooted in the community. The parties to a dispute often accept the decision made by the village elders due to their faith in the system. However, the decisions pronounced by the village elders may sometimes be punishingly harsh to the extent of amounting to excommunication, which would imply debarring the guilty from taking part in social or communal activities or obligations.
The practices of community mediation have existed in Nepali society since time immemorial. However, such practices are traditional, informal and coercive. The decisions are sometimes imposed by the village elders on the parties to a dispute and the parties are bound to accept the decisions without demur. So such practices cannot be deemed scientific and the dispute settlement process cannot be considered acceptable.
There are several types of mediation. They are community mediation, mediation through mediation centres, mediation through local bodies, private mediation and mediation through professionals. The government has now decided to establish mediation centres at every local level. There are 753 local levels in the country. Mediation may be taken as an alternative mechanism of dispute resolution.
Mediation works on the principles of equality, neutrality, impartiality, confidentiality, empowerment and respect. The process of dispute resolution through mediation differs from that of litigation proceedings. In a litigation process, the parties are called the defendant and the plaintiff, whereas in mediation they are simply called parties. The litigation cost is higher than the mediation cost and the methods of dispute resolution are also different. That a large number of disputes are resolved through mediation in the country has made it necessary to systematize the mediation process, aiming at establishing a mediation centre at each local level. For the resolution of disputes, 15 per cent people move the court, 10 per cent go to their community, six per cent have recourse to their local governments, seven per cent take the help of the police, two per cent fall back upon chief district officers, 51 per cent have their disputes settled through mediation and nine per cent just sit down under injustice seeking help from nowhere. This shows that many people seek the resolution of their disputes through mediation.
The Constitution of the country allows the adoption of alternative means, such as mediation or arbitration, for the resolution of disputes of a general nature. We have the Mediation Act 2068 and Mediation Regulations 2070 to govern the mediation process in the country. The mediation process that has been practiced in the rural areas by the village elders is informal and non-transparent, whereas the mediation process to be practiced at local levels will be recognised by the law and hence will be formal and transparent. Moreover, it will be a regulated profession.
To systematise the mediation process, there is the Mediation Council presided over by a sitting judge of the Supreme Court and the Registrar as the member secretary along with other members. The Council acts as a regulatory body to oversee the mediation process at individual and organizational levels. The Council licenses, monitors and supervises mediators.
Those who want to be mediators should join at least 40 hours of training on mediation. The curriculum of the training is as approved by the Mediation Council. The prospective mediators should be at least 25 years of age and hold at least a Bachelor’s degree. Once they have undergone the required training by fulfilling all the criteria laid down by the Mediation Council, they may be issued mediation certificates by the Council. The certificates, or rather licences, should be renewed every three years. Even an institution may obtain such a certificate and operate a mediation centre.
The Mediation Council not only supervises licensed mediators, individuals or institutions, but also implements the code of conduct.
After mediation centres have been set up at local levels, people will have to first have their disputes resolved at the mediation centres. They can choose one mediator of their choice from among several mediators. Or, they can choose three mediators. In this case, one mediator will be chosen by one party each and the third mediator wilal be chosen by the parties or the two mediators and will act as the coordinator of the two mediators. If the dispute cannot be resolved by the mediator or mediators, the dispute will be referred to a court. People can even choose a literate person who has not undergone mediation training and does not hold a Bachelor’s degree as their mediator. But it would be better to avoid choosing such a mediator.
Mediators should not act as judges, arbitrators or legal advisors but as facilitators. Their main aim should be to settle disputes quickly and amicably to the benefit of both the parties. Further, a person who has acted as a mediator will not be allowed to act as a lawyer, arbitrator or judge in the same case.
Mediators will be required to perform their job in an impartial manner without nepotism, favouritism, bias or prejudice. They will not be allowed to influence the case by striking terror or fear into any party. No financial transaction will be allowed till the dispute is settled. Mediators will not be allowed to do activities that fall under the conflict of interest. Mediators will have to observe the code of conduct and will not be allowed to act in contravention of the Mediation Act. Erring mediators may be removed by the parties themselves or by the adjudicating body or agency that has appointed them.
The provision of mediation centres will lighten the caseload in courts. Only those cases or disputes that cannot be resolved by the mediation centres will be looked after by courts. In the past, some lawyers opposed the idea of local-level mediation for fear of losing their income. Now they have understood the importance of mediation centres as most cases are expected to be resolved out of court and they will have to look after only serious cases. The provision of mediation centres is expected to play a big role in resolving disputes at the local level in a fair and impartial, prompt and cost-effective manner and be a good bedfellow of the judicial system of the country.
(Former banker, Maharjan has been regularly writing on contemporary issues for this daily since 2000)