Why Mediation Services Fail In Nepal

A few months ago, Mediation Council asked different teams of alternative dispute resolution experts to interrogate and produce suggestions on several issues such as mediation training curriculum and training management, performance and quality of mediation training providers, mediator’s code of conduct and many other relevant aspects. These issues have, indeed, significant bearing upon the process and outcome of mediation in enhancing effectiveness towards dispute resolution in Nepal. The teams have already provided their reports to the Council, outlining several suggestions and recommendations on the subjects assigned to them. Needless to say, the council is a regulatory authority provisioned in the mediation act and rules to promote and institutionalise mediation services in Nepal.  

The suggestions basically emphasise on the need to make an appropriate institutional arrangements and process to ensure effectiveness of mediation in dispute resolution. It is expected that the Council will carefully assess the suggestions and recommendations, and launch proper steps and measures towards their implementation especially in the areas that it can do without larger dependence upon the government agencies that mostly fail to respond to such pleas and suggestions. This write-up attempts to take note of some of the aspects of the ethics and standard obligations that are central to increase the effectiveness in the delivery of mediation services.

Code of conduct

The research team made rapid appraisal of the state of the compliance of the code of conduct. For this, the team held interactive discussions with different category of respondents particularly the court judges, officials, lawyers and other stakeholders who knew intimately about the operational issues and practical details regarding dispute resolution through mediation. The   study seems to be largely concentrated on the court - annexed mediation where lawyers and court officials are generally involved in conducting settlement facilitation of the cases referred by judges using mediation skills. 

The report unravels several glaring instances of deviation and violation of conduct standards by those who are involved in the settlement facilitation and resolution of the cases. The report states that the mediators and dispute settlement facilitators pay no due attention, and spare a dedicated time to help resolve the issues through effective use of the mediation skills. According to the report, there are also cases to indicate the dereliction of duty on the part of designated mediators. The mediators, as mentioned in the report, pay no heed to schedule and convene discussion between the litigating parties to clarify and resolve the issues inherent in the disputes. This lack of seriousness and attention on the part of mediators to attend to their duty eventually leads to lapsing of the time- period allotted in conducting and closing mediation sessions without yielding any outcomes because of the failure to act in prescribed period. 

Furthermore, the rapacious breach of the code of conduct surrounds the issue regarding remuneration to be paid to the mediators for the offer of their dispute resolution services. The report brings to fore the instances in which mediators tend to ask for additional and more monetary compensation and pecuniary benefits than prescribed. Moreover, the lawyers and court officials,  as the report discloses, oftentimes fight for slots, favours and the spaces in mediating cases especially with a view to accrue undue pecuniary benefits. According to code of ethics recognised as global standard, a mediator should neither give nor accept a gift, favour, loan or other item of value that raises a question as to the mediator’s actual or perceived impartiality.

Moreover, a mediator should also avoid a conflict of interest or the appearance of a conflict of interest during and after mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any disputing party, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality and independence. Likewise, a mediator needs to mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties. Any person may be selected as a mediator, provided that the parties are satisfied with the mediator’s competence and qualifications. It is important to note that training, experience in mediation, skills, cultural understandings and other qualities are necessary for mediator competence. A person who offers to serve as a mediator creates the expectation that he or she is competent enough to mediate effectively to resolve disputes.

Confidentiality 

A mediator should attend educational programmes and related activities to maintain and enhance knowledge and skills related to mediation. A mediator should be available for the parties’ information relevant to the mediator’s training, education, experience and approach to conduct mediation.  If a mediator, during the course of mediation, decides that he or she cannot conduct the mediation effectively, he or she should discuss that issues with the parties concerned and take appropriate steps to address the situation. The steps may include, but not limited to, withdrawing or requesting appropriate assistance. If a mediator’s ability to conduct mediation is impaired by drugs, alcohol, medication or other reasons, the mediator should not conduct the mediation and be liable to face action.

It is universally maintained as a standard that a mediator should maintain the confidentiality of all information obtained during mediation unless otherwise agreed to by the parties. If a mediator participates in teaching, research or evaluation of mediation, the mediator should protect the anonymity of the parties and abide by their reasonable expectations regarding confidentiality. A mediator who meets with any persons in private session during mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person. These aforesaid ethical standards are more or less global creeds which need to be adhered to by mediators in all jurisdictions including Nepal. Effective implementation and enforcement of the code of conduct can contribute to enhance trust and creditability of mediation services Nepal.

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