- Instead of judging who is right or wrong, mediation helps parties explore options that best serve their mutual interests and needs
Jul 19, 2014-The Nepal Mediation Act recently entered into force, propelled into effect after the government had approved its supplementary rules and regulations. The Act had gone through a long and uncertain phase of confusion, giving rise to apprehension and fear as to whether the law would ever be implemented. For almost two years, the Act was allowed to lay dormant in the statute book for a lack of supplementary rules and regulations. It is to be noted that several provisions in the Act are indicative, declaratory or pithy. These provisions are explained, clarified and elaborated on by the supplementary rules and regulations.
No act of the national legislature comes into effect unless the government formulates and adopts supplementary rules and regulations. The act itself authorises and delegates the government to prescribe and elaborate on the details through these rules and regulations. However, rules and regulations (niyamawali) can only prescribe details and procedures subject to provisions in the act in question. No rules and regulations can supersede, override or violate the provisions of the act and in case there are explicit grounds for such a distortion, the court can annul the rules entirely or a certain section. Going by the provisions of the Mediation Rules and Regulations, one can assert that the substantive provisions of the Act have been largely elaborated and explained on to pave the way for implementation.
Moreover, shortcomings can be noticed, improved and reformed only after the implementation of the law and its regulations. The experiences and lessons generated through the implementation and execution of legal provisions can provide empirical data for reforms and improvement. At the moment, when the law itself has yet to be implemented, it is too early to pin down its weaknesses as such an exercise would be very much theoretical and conjectural.
The Lankan link
The Nepal Mediation Act should be hailed as the first of such statutory initiatives in South Asia, except for Sri Lanka, where a similar law has been in effect for some years now. The Sri Lankan model of mediation inspired Nepali proponents and many say the Nepali Mediation Act draws substantively from the Sri Lankan Mediation Boards Act. Nepali officials from the judiciary and the bureaucracy paid a visit to the island nation for exposure and to study the implementation of mediation there. Sri Lankan experts and officials handling the implementation of the mediation act also visited Nepal several times to exchange knowledge and experiences . So behind the enactment and enforcement of the Nepal Mediation Act lies a history of experiences gained through practices on both court-referred mediation and community mediation.
In Nepal, court-referred mediation has made significant inroads to affect and transform the dynamics of justice delivery. Court regulations have been amended to accord priority to mediation as an important recourse to dispute resolution. The Supreme Court of Nepal has formulated an action plan for the implementation of the mediation, which, if executed effectively, would contribute significantly to mitigate case loads and promote a participatory justice delivery process where both litigating parties, not judges, find their own solutions. A study undertaken to assess the status of court-referred mediation in Nepal revealed that only around 20 percent of all disputes registered in court and eligible for mediation were actually referred for mediation. And not all disputes sent for mediation are resolved, because of different reasons, including a lack of skills to facilitate the dispute resolution process. The action plan worked out by the Supreme Court intends to address these problems and enhance the effectiveness of court-referred mediation in the country. As a member of the team formed to work out the action plan, this scribe sees a lot of positive elements in the plan, especially in capacity development of stakeholders.
One should be aware of the fact that dispute resolution through community-based mediation is different from court-referred mediation in terms of the context, coverage and impact. The community-based dispute resolution process is facilitated and executed by local people who are trained in the art and skill of mediation. These people are trusted by those party to the dispute. The mediation service is supported by VDCs and municipalities in line with provisions in the Local Self Governance Act.
Instead of assessing and judging who is right and who is wrong, the mediation process helps parties to collaborate to explore options that best serve their mutual interests and needs. Local mediators need not know the basics of the law and legal procedures since the interest of parties, not rights and entitlements as defined by the law, is more important. Mediators need to know how to maintain neutrality and act as impartial facilitators in the mediation process to turn enmity into amity and transform antagonistic relationships into constructive rapport.
The entering into force of the mediation act and the subsequent constitution of the Mediation Council under the chairmanship of a Supreme Court justice can create an enabling environment that will institutionalise mediation in Nepal. The government is contemplating implementing community mediation in all VDCs and municipalities of the country. As the enabling legal environment is in place, it is the right time for the government to proceed.
Rijal holds a PhD in local governance and dispute resolution
Published: 20-07-2014 08:56