Mediation At Local Level

Mukti Rijal

 

Judicial Committees led by deputy chiefs of the local government –Gaupalika and Nagarpalika- have become functional and effective in most of the districts. According to the reports coming from local governments in various districts, the Committees have resolved a big tally of disputes of various natures and types filed and brought by local communities for their settlement and closure.
The contents of disputes that are resolved by judicial committees, according to the reports, essentially include family quarrels, petty monetary transactions, cheating and deception, matrimonial rifts, alcohol abuse, physical assaults, land encroachment and trespassing, unpaid wages and so on. According to the reports, most of the disputes are resolved through recourse to facilitative negotiation and mediation whereas a few of the disputes are settled through awarding of verdict like in the court. Some variations exist in this regard too.
Some Gaupalikas and Nagarpalikas have even gone to the extent of setting up a kind of bench generally referred to as Izlaas in Judicial language in which judicial committee coordinator and members share seats to preside and conduct proceedings to examine and conclude right and wrong in awarding verdict. This practice exists in some of the municipalities of Kathmandu valley too but this is gradually being abandoned as judicial committees are neither judicial nor quasi judicial bodies necessarily required to adopt and follow court procedures.
Moreover, judicial committees lack competence, orientation and proclivity to undertake the evaluative and judgmental function like courts to separate right from wrong, just from unjust to define factual and legal basis for passing verdict to close the dispute.
As a result, judicial committees are more inclined to take recourse to facilitative dialogue and mediation (Melmilap) - a practice built also into customs and traditions of the society since long and also clearly articulated and emphasised by the Local Government Operation Act 2017 and different instruments and documents. The Act explicitly pitches mediation as a primary and fundamental resort of dispute resolution since it has several advantages and benefits.
The Mediation Act 1968 – umbrella law to promote and regulate mediation in Nepal - defines mediation as an efficient, effective, speedy, convenient and less expensive process to resolve a dispute with dignity, mutual respect and civility. It also lays out procedure for resolution of disputes. Likewise, guidelines and manuals developed by the Ministry of Federal Affairs and General Administration elaborates the basic principles and process of mediation laying down that it is conducted by a neutral third party since mediators remain impartial, independent, detached and objective throughout the mediation process. While conducting mediation process, mediators assist the parties in resolving their dispute and help the parties to find their own solution to the dispute. Mediator’s personal preferences or perceptions do not have any bearing on the dispute resolution process.
According to the training manual produced and widely circulated by the government for imparting basic course to judicial committee members and mediators at local level, mediation is a voluntary, party-cantred and structured negotiation process where a neutral third party assists the parties in amicably resolving their dispute by using specialised communication and negotiation techniques and skills. In mediation, disputing parties retain the right to decide for themselves to settle a dispute and define the terms and conditions of settlement or closure of the dispute.
Even though mediators facilitate their communications and negotiations, disputing parties always retain control over the outcome of the dispute. Adjudication is conducted by judge in the court in an adversarial fashion in which parties lack any say and control over determination of outcome. It is a party-centred negotiation and participatory process in which disputing parties, not the mediators, are the focal point.
Mediation encourages active and direct participation of the parties in resolution of their dispute. Disputing parties are actively encouraged to explain the factual background of the dispute, identify issues and underlying interests, generate options for agreement and make a final decision regarding resolution of disputes. It is different from adjudication on the ground that it is not governed by the rules of evidence and formal rules of procedures. However, the mediation process itself is structured and formalised, with clearly identifiable stages. However, there is a degree of flexibility in following these stages as spelt out in rules, regulation and process of mediation.
Mediation addresses underlying causes of a dispute. Thus, it is broadly focused on the facts and underlying interests of the parties, such as personal, business, commercial, family, social and community interests. The goal of mediation is to find a mutually acceptable solution that adequately and legitimately satisfies the needs, desires and interests of the parties.
.It is clearly provided that mediators employ certain specialised communication skills and negotiation techniques to facilitate a productive interaction between the parties so that they are able to overcome negotiation impasses and find mutually acceptable solutions. Mediation process is also confidential in nature, which means that statements made during mediation cannot be disclosed in civil proceedings or elsewhere without the written consent of all parties. Further, any information given by a party to the mediator during mediation process is not disclosed to other party unless specifically permitted by the parties to the dispute.
The key elements of mediation process highlighted above show that it is a democratic and participatory process that can restore and repair relations between the disputing parties to promote overall harmony in the communities. Judicial Committees should necessarily enhance an effective application and practice of mediation to ensure that disputes are addressed and resolved to achieve gain –gain outcome to the satisfaction of the disputing parties concerned. This is mutually satisfying that outcome is not possible to achieve through adjudication or any other process and methodology of dispute resolution.
(Rijal, PhD, contributes regularly to TRN and writes on contemporary political, economic and governance issues) 

 

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