Promote Arbitration, Mediation

Symposiums, workshops and seminars have been convened time and again to discuss the strengths and weaknesses of the dispute resolution systems in Nepal.  This writer took part in two of such events organised during the previous months dwelling around the dispute resolution with special focus on arbitration and mediation. The first of such events was organised by Nepal International ADR Center (NIAC) in which supreme court justices and government secretary in charge of ministry of law, justice and parliamentary affairs, among others, had made impressive presentations on the need to strengthen alternative dispute resolution system as formal court litigation has failed to avail justice to the people in a judicious manner. 

Another event of the significance especially in terms of enhancing policy dialogue on the issue was organised under the auspices of the Policy Research Institute (PRI) which discussed the need to strengthen the role of judicial committee at the local level to promote mediation for community peace and harmony.  In both the events, justice Kesari Raj Pundit, who is known for his role in blazing the trail for the promotion and development of mediation in Nepal, spoke why mediation needs to be promoted and institutionalised in Nepal. 

Proper justice

Narrating in details regarding his career as the justice in the court of law, he expressed his dissatisfaction over the court system as procedures involved in litigation cannot help ensure the delivery of proper and adequate justice to the aggrieved party. It is costly and cumbersome, tears interpersonal relations apart leaving no space for disputing parties to mend their mutual ties. Sitting  senior justice of the  Supreme Court  Iswor Parasad Khatiwada, who heads the Mediation Council, the  regulating body for promotion and development of mediation in Nepal, spoke about the values and norms of mediation that contribute to the democratisation, mutual accountability and accessibility of justice.

At the backdrop of these events, activities carried out to discuss the issues focused on promotion of the mediation and arbitration in the domestic context, this write-up culls from the important conclusions and recommendations churned out from much valued international conference which was hosted jointly by US based Keystone Centre and Mediate.com a few years ago where over hundred senior mediators and facilitators, primarily from more or less around the world had taken part. The conference outcomes seem to be relevant to guide the mediators and dispute resolvers in Nepal given our context in the discipline.   

Nearly all of those attending the conference had twenty or more years of experience as conflict resolvers and many had additional qualifications as leading thinkers, writers, teachers, and researchers. Titled as the Keystone Conference, the purpose of the meeting was to take stock of where the field of mediation has come over the past three decades; assess the current landscape and field’s current strengths and weaknesses. Moreover, the conference aimed at to prepare a statement of best counsel and guidance to the next generation of policy-making and policy-influencing practitioners. 

The conference took note of the fact that the last two decades have been a time of experimentation, development, and in certain areas, progressive institutionalisation of mediation in the world. However, the current community of senior conflict resolvers and mediators has not organised itself as a coherent profession, field, movement, or discipline. Sectored interests in family mediation, court mediation, environmental mediation, and community mediation continue to be strong but effective bridges across these application areas have not yet been built. The conference report titled collective wisdom took note of the fact that the world is confronted with real and perceived threats from several conflict arenas. 

It is, therefore, necessary that the government officials immediately engage in honest, direct and unconditional negotiations with all authorities and powers who can resolve these ongoing crises like in Ukraine in ways that are equitable and practical for all concerned without sacrifice to national sovereignty or security. The conference reiterated the fact that many practices of mediation seem fragmented from each other and overly self-absorbed on the role of the mediator. It is, therefore, necessary that an affirmation of certain fundamentals continues to be important. Definitions and philosophies of mediation will always vary whenever and wherever training and institutionalisation take place. 

Nonetheless, at least five principles, as duly noted in the conference, are critical in the context of Nepal as well. First, mediation is a voluntary and supplementary process and should not be used to substitute for or jeopardise participation in other due process and procedures. Second, it should continue to remain a confidential process and efforts to undermine this should be resisted. Third, participation in mediation should be “eyes open” and premised on informed consent. Fourth, specific mediators should not be forced on the parties. Parties must retain a free choice of neutrals who have adequately revealed any conflicts of interest. Fifth, parties with standing or interest should have full and equal access to a mediation forum to help resolve matters to the highest satisfaction and full self-determination of their own negotiated outcomes.

Experimentation

The conference noted that new cyber and cellular technologies offer extraordinary opportunities to assist people in resolving conflicts. Recognising that technologies can be adapted and used in many ways, mediators and facilitators who do not stay abreast of such developments may find themselves increasingly marginalised and irrelevant. Experimentation and use of these technologies should be encouraged especially taking cognizance of pandemics like COVID-19, among others.

A new generation of research is needed to more definitively understand mediation impacts, how and when various forms of mediation are and are not effective, and how various dispute resolution processes can best be effectively and efficiently used towards different ends. Our societies like in Nepal are diverse, multi-ethnic, and cross-cultural and likely to become more so. This requires better understandings of cultural factors and the dynamics that pertain to communication, negotiation, and resolution. 

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)