Nepal | July 11, 2020

Mediation gaining currency as tool to settle cases out of court

Ram Kumar Kamat
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Kathmandu, September 19

With the enforcement of the new civil code, all courts will now have to send cases that qualify for mediation to the mediation council.

As per law, civil cases, including some criminal cases which are filed by individuals and not the state, qualify for mediation. Mediator Narhari Acharya said that the incorporation of new provisions relating to mediation will help popularise the tool to settle cases.

Section 13 of the Civil Procedure Code states that the courts must give parties a chance for mediation before adjudicating the cases.

Initially lawyers representing the litigants did not have favourable attitude towards mediation, but in recent years, they encourage parties to go for mediation when they believe it will be more beneficial than court settlement, Acharya added. “Mediation gives a win-win solution to both parties, whereas court verdicts can give nothing to the party that loses the case,” he said. Acharya said mediation was proving to be an important tool for the parties to end hostility. “We have seen litigants who did not speak to each other for 10 to 15 years and  did not  want to see the faces of their opponents, ending up hugging each other,” he said.

Acharya said that ego built in the minds of the litigants over the years in the course of fighting court battle was the main obstacle to the alternative methods of settling court case. “I had one case where one party said that he was ready to give up the claim over the disputed land, but he wanted the land to be measured by a surveyor. Another party was so egoist that he did not allow measurement of his land, saying it would undermine his prestige in the locality,” he added. He said lawyers representing the litigants played an important role in encouraging their clients to go for mediation.

Another mediator Advocate Dipendra Kumar Rai said mediation would play an important role in settling cases now after the enforcement of civil code. “Earlier, the court referred cases for mediation only when the parties to the case decided to go for it. Now the court will have to refer all cases that qualify for mediation to the Mediation Council,” he said.

“I am sure that the percentage of mediated settlement of cases can go  up to 50 per cent from the current average rate of 23 per cent  if mediators are armed with necessary skills and experience,” he said and added that mediators still lacked skills to offer alternatives to both parties to the case.

“In many cases mediators fail to bring litigants to agreement because they neither do enough research in the case nor do they study the case files thoroughly,” he said.

Another mediator Sarita Shrestha said mediation could be more beneficial for litigants if they were encouraged to go for it in the first tier of the court. “When litigants reach higher tiers of court, they are not very willing to go for mediation because they think they have already spent too much time and resources and they need to win their case,” she added.

The SC had referred 327 cases for mediation in the current fiscal.

According to Mediation Council of the Supreme Court, 22.38 per cent cases were settled through mediation in the 2015/16 fiscal, 21.61 per cent in 2016/17 fiscal and 21.47 per cent in 2017/18.

 


A version of this article appears in print on September 20, 2018 of The Himalayan Times.


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