Mediation Act Of Nepal New Milestone In Resolving Disputes : Mukti Rijal
Chief Justice Kalyan Shrestha has initiated some major steps to improve judicial governance in the country. As a very senior and erudite justice, he knows the ins and outs of the justice administration in the country. He has formed a panel to recommend and implement measures to make judicial governance more effective and transparent and ensure that justice is accessed by the ordinary people in a hassle-free manner. Well-known malaisesNeedless to say, many deep-seated problems and malaises encountered by the judiciary are not hidden and are known especially to those who have witnessed the functioning of the judicial system in the country. It is alleged that the justice dispensation process in the country is not fair and prompt. The bureaucracy in judicial institutions lacks proper orientation to deliver prompt services to the people. The servile and bureaucratic attitudes tend to corrupt and obstruct the justice dispensation process. It makes the justice delivery cumbersome and difficult. Morals and ethics in the judiciary are said to have been compromised oftentimes, as a result of which justice delivery becomes tainted with corruption and irregularities. However, this is not only due to individual attitudes and personal avarice and greed. The problems lie in the structures, systems and procedures. What can be said is that the justice administration system that exists today in our contemporary society is not able to cope with the ever increasing burden of civil litigations. The problem is not of load alone. The deficiency lies in the adversarial nature of the judicial process. It is time consuming and very much procedure oriented. The adversarial procedure of the courts does not aim at resolution of competing claims of the disputing parties. It rather aims at upholding the case of one and rejecting the case of the other. This leaves the conflict between the parties unsolved and unaddressed. The adversarial system, therefore, hurts and destroys relationships. By requiring the dispute to be cast in a mode that is tailored to one achieving victory over the other, it imposes a language, behaviour and culture which bespeak of confrontation and animosity.
Against this backdrop, alternative dispute resolution mechanisms are devised, innovated, developed and practiced in almost all countries of the world, and they have become popular in contemporary society. These mechanisms are distinct from the judicial process. Their objectives have been to ensure easy access to justice and resolve the issues so that relationships between and among the parties are restored and nurtured. Delivery of justice is executed without much undue delay and at a lesser cost. The most important part is that the disputing parties can participate in the resolution of their cases. The mediator who helps the parties and facilitates the proceeds is generally of the disputant’s own choice. The neutral is generally familiar with the nature of the dispute and context in which disputes generally arise. The proceedings are informal, without any procedural technicalities. They are conducted, by and large, in the manner agreed to by the parties. The dispute is resolved promptly and with less expense, where the confidentiality of the subject matter is maintained to a greater extent. As in many countries of the world, Nepal has enacted a law relating to mediation and recently brought it into force. In fact, a new momentum has commenced to impart impetus to enhancing the use of alternative dispute resolution tools, especially mediation.
The law relating to mediation has been brought into effect only after the supplementary rules and regulations laying out the details and procedures for its implementation were approved and adopted by the government. The Mediation Act 2011 had gone through a long, beleaguered and uncertain phase of doubts and confusions before it was promulgated this year. It had even given rise to apprehensions and fears as to whether the law would ever be enacted, made effective and implemented. For almost two years, the Act had been allowed to lay dormant in the statute book for lack of supplementary rules and regulations. However, it has been enacted and put into effect. The Mediation Council created by this act is effortful to implement the provisions of this act. In fact it is a generic law governing the mediation process and mechanism in Nepal. It covers different aspects of mediation and consolidates them into a single legal instrument. It establishes uniformity in mediation and establishes the processes and procedures to implement it. Needless to say, the dispute resolution process and methodology require consistency and coherence for effectiveness and fairness.
The Act, therefore, provides for minimum training and accreditation requirements for trainers, mediators and professional mediation service providers. The Act prescribes appropriate conduct obligations for mediators who participate in facilitating the process for resolution of disputes. It provides for a Mediation Council - an apex body headed by the sitting judge of the Supreme Court of Nepal - to regulate and promote the mediation services. It protects some core mediation principles like impartiality, confidentiality and self-determination, fair process and so on. It provides a central legislative vehicle for a coherent and consistent framework for mediation in Nepal. Promoting community mediationThe Act makes the mediation outcome binding on the disputing parties. The Act enjoins and mandates the Ministry of Federal Affairs and Local Development (MoFALD), though implicitly, to promote, enhance and develop community mediation. The new constitution should also recognise it and guarantee that alternative dispute resolution mechanisms like mediation, conciliation are promoted and institutionalised in the days to come.