Judges’ Role In Mediation Services

Alternative dispute resolution (ADR) mechanisms, especially mediation, have become massively popular in Nepal. Mediation has been made institutionally an integral part of dispute resolution in the courts across three levels – District Court, High Court and Supreme Court - for last two decades. Similarly, local governments have been constitutionally mandated to create such mechanism as judicial committee to resolve disputes primarily through recourse to mediation. In case mediation fails, judicial committees can take resort to adjudication to resolve cases especially listed in section 47(1) of the local governance operation act 2017.  

Though some books and articles focused on different aspects of mediation in Nepal can be accessed, these are basically written with reference to normative and legal-institutional perspectives. There is a sheer deficit of systematic studies and investigations using empirical data collected through discussions and interviews with mediation users and stakeholders in Nepal. Such studies can alone ascertain and bring to fore the relevant practical and behavioral issues to account for the state of implementation of mediation and their effectiveness in delivering justice to the people.

Ambience of judiciary

Recently, a preliminary survey on the state of mediation conducted under the joint auspices of National Judicial Academy and Mediation Council based on some secondary data has discussed some issues and aspects. The study report had been shared with a critical group of users and stakeholders at an interaction programme. The study spells out the growth trajectory of mediation across all jurisdictions especially in the court, community and local neighborhoods.  The report shows the relatively poor situation of case referral by judges to the process of court connected mediation. Moreover, larger percentage of the cases - as their type and the issues involved show - registered in the district courts could be settled through a recourse to process of   mediation. 

This indicates that the district court judges - the court of first instance - seem, due to one or the other reasons, to be more attuned to adjudicatory process than referring cases to mediation. From the data produced in the study it can be concluded that the absence of a conducive environment for mediation is partly attributable to the lack of judges’ understanding, institutional incentives, proper guidelines and orientation in regard to mediation in the districts. The success of the court connected mediation is linked to the number of referrals a judge makes and how mediation friendly is the ambience of judiciary. When we talk about the ambience of judiciary congenial to mediation, it includes the commitment and suitability of judges, lawyers, core staff of the courts, institutional and physical infrastructures to facilitate the process of mediation.  

The role of a referral judge in determining the possibility of settling a dispute through mediation has also been recognised properly in such countries as Malaysia, Sri Lanka, India and so on. The referral judge can play an instrumental role in building the parties’ positive perception about mediation, which can significantly influence their willingness to opt and actively co-operate during the process of mediation. If judges are not equipped and motivated to handle and refer cases for mediation, it may have poor consequences for the outcome of such efforts. The disputing parties need to have confidence in the process, which cannot be fostered through a mechanical referral of a dispute to mediation. 

Even if mediation is mandated for some or all civil disputes, the onus is on the referral judge, lawyers and legal counsel to ensure that parties enter the process of mediation willingly with an open mind. In fact, the potential of mediation lies across case types and different stages in the court adjudicatory process. This is also borne out by the experience of countries such as Australia where mediation has been found to be successful in diverse cases even at advanced stages of litigation. However, for this to occur successfully, role of a referral judge needs to be clarified in the rules and guidelines so as to enable him or her to tactfully convince parties to attempt mediating settlement of disputes, even in unconventional and complicated cases.

There are several instances to show that efforts through mediation contribute to result in the settlement of complicated disputes even at the appellate stage. The complex and unconventional disputes have been referred to mediation because of the efforts of the referral judges and legal counsels who could persuade parties to attempt at mediating disputes settlement. Taking cues from such instances, proper guidelines need to be worked out for referral judges in Nepal. In Australia, for instance, National Alternative Dispute Resolution Advisory Council has laid down   guidelines to ascertain suitability of cases and referral for mediation. 

Training and accreditation

Even as the role of the judge in referring cases necessarily involves exercise of certain discretionary power, laying down of the criteria and guidelines for such decision making can contribute to more consistent patterns in the kind of cases that get referred for mediation. This contributes to create a more uniform and cohesive development of court-connected mediation. Training and accreditation of mediators training programmes have been recognised as a necessity for mediators in almost all jurisdictions. Pre-mediation preparation, understanding positions, interests and needs, effective communication and handling skills, negotiation facilitation, understanding neutrality and confidentiality, have been key elements of effective mediation process. 

There is a widespread recognition of the fact that awareness building and usage will increase only if there is a quality of mediation service accessible to the needy people. In Nepal, needless to say, mediation council is in place as an enabling and regulatory body to conceptualise and formulate training curriculum, coordinate and monitor the training programmes and accredit the mediators. However, it is noted that the regulatory body lacks capacity and there has been a sheer lack of provision of training quality assurance and monitoring to ensure effectiveness of mediation services.

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