Using mediation services incurs fewer costs, and the process protects privacy and confidentiality. The mediation allows for voluntary participation of the disputing parties in resolution process in a fairer and legitimate way
Nepal has introduced a Mediation Act and brought it into force in mid April 2014. A new momentum has been imparted to the use of consensual dispute resolution tools after the enactment and effective commencement of the mediation act. For almost two years, the Act had laid dormant in the statute book because of the lack of the supplementary rules and regulations. Several provisions in the Act tend to be substantive and precise. The provisions in the Act (Ain) are explained, clarified and elaborated through the supplementary rules and regulations.
However, the rules and regulations can only prescribe the details and procedures subject to the limit laid down by the Act. No rules and regulations should supersede the provisions of the parent Act. In case there are grounds to prove the occurrence of such overriding, the court can annul the rules or part of the impugned rules if they are challenged in the court of law. Going by the provisions of the Mediation Rules and Regulations, one can say that the substantive provisions of the mediation act have been largely elaborated and explained by the rules and regulations to set stage for implementation. Moreover, shortcomings can be noticed, improved and reformed only after the lessons and issues are gathered through implementation. The experiences and lessons can supply the empirical data for reform and improvement. At the present moment, when the law itself is new, and yet to be fully brought into operation it is too early to pinpoint and figure out its pitfalls. Such an exercise at present would be very much theoretical and premature though there may be areas where amendments and modifications would be needed in the immediate future. Where would the scheme of the mediation provided by the national law fit in is also a question to be dealt with.
The enforcement of the law has at present triggered off a flurry of activities in different quarters. The Mediation Council – a product of the mediation act – has been active to promote and strengthen mediation in Nepal. Nepal Bar Association has launched a series of trainings for lawyers and law practitioners on mediation tools and senior lawyers have started championing the cause of mediation in Nepal. The law practitioners who tacitly disfavoured and resisted the use of mediation in the past assuming that it tends to curtail and diminish the professional scope of lawyers have now accepted the growing popularity of this consensual mechanism for dispute resolution. They have started to realize the fact that mediation can open up new scope and possibilities in the area of their professional development too. As the judiciary is committed to promote court referred mediation to lessen the load of litigation based conflicts, the law practitioners are compelled to transform their assumptions and attitudes, and accept that the consensual dispute resolution can contribute better for accessing justice to the ordinary people.
Similarly, the government especially, the Ministry of Federal Affairs and Local Development (MoFALD), have also started to train its officials especially at the DDCs to support the process of community mediation in VDCs.
Moreover, Local Governance and Community Development Program (LGCDP) – a multi-donor supported program implemented by MoFALD has prioritized community mediation as one of the core services to be delivered by village development committees and municipalities. The District Development Committees have taken interest to support the mediation services, and during the last Fiscal Year 2014/2015 AD some DDCs supported the promotional and capacity building activities too. In the sphere of community mediation the contribution of the civil society organizations has been very seminal and important. In thirty one districts civil society organizations have assisted the municipalities and VDCs to set community mediation services. Thousands of disputes have been resolved through resort of mediation in the rural communities of Nepal. Mediation permits and encourages the disputing parties to have active participation in and more control over the process of resolving their disputes. It is characterized by flexibility, informality, and control by the parties to a dispute.
Using mediation services incurs fewer costs, and the process protects privacy and confidentiality. The mediation allows for voluntary participation of the disputing parties in resolution process in a fairer and legitimate way. It supports the crafting of a creative and mutually satisfactory resolution. It helps to restore and enhance the parties’ relationships and maintain their dignity. Mediation as a tool for appropriate dispute resolution has been increasingly used in both national and international jurisdictions. The most important benefit of mediation is that it is very much suitable and appropriate for the resolution of multiparty and multi – stakeholder disputes, issues and conflicts.
The process is less complex, simple, democratic and transparent. It provides practical solutions tailored to the interests and needs of the parties themselves. It ensures durability of agreements and preservation of relationships and dignity. In Nepal as we have enacted the mediation law, it should be implemented in an effective manner to reap its benefits in the delivery of justice to the ordinary underprivileged people in the country.
A version of this article appears in print on October 27, 2015 of The Himalayan Times.