Lawyers-cum-Mediators Bridge Divides

Supreme Court Bar Association organised the basic mediation training for advocates and senior advocates, the other day, in technical collaboration with Nepal International ADR Center (NIAC). In the opening session of the training Supreme Court Justice Sapana Pradhan Malla who is also the chairperson of the Mediation Council -  the apex  regulating authority -  made an impassioned plea with advocates for cultivating positive and cooperative attitude in using and promoting mediation for amicable and non-adversarial resolution of disputes. She made a point to pass message across stating that lawyers' role is critical in determining the success of mediation across all jurisdictions as their counseling defines and influences the clients to reconcile and find solution to the disputes. 

More pointed and discerning were the observations of the president of the Supreme Court Bar Association senior advocate Hari Shankar Niraula who stated that the vested interests of lawyers and legal counselors break the process of reconciling disputes and bring them into amicable closure. He emphasised on the need to transform the attitudes of the lawyers for the success of mediation as it not only makes justice accessible to the ordinary populace but lessens the burden of the court. He argued that in order for our society to reap the benefits of mediation lawyers in the courts across all levels must come to understand mediation and be effortful to develop an ability and willingness to mediate a variety of matters that are currently pushed through the adversary based litigation mill.

Mediation law

Nepal enacted law relating to mediation in 1968 and its supplementary rules in 2071 B.S which blazed trail for institutional development of mediation in the country. Mediation has been used in resolving disputes in the communities while court annexed mediation services contribute in resolving disputes even if they are sub judice in the court.  However, for this to occur, judges need to take consent of the disputing parties before they are referred to mediation services.  

Needless to say, a mediator helps disputants towards resolving their disagreements and differences irrespective of their locations and jurisdictions. Unlike a judge or arbitrator, mediator, nevertheless, lacks authority to impose a decision on the parties; as he or she can only facilitate the process of dispute resolution.  In fact, mediation has been and remains the dominant method of processing disputes in some quarters of the world, though rational version of mediation in modern times was brought into practice in the US and many western countries during the late Sixties and Seventies. Nepal has a rich tradition of mediation and consensual practices of dispute resolution but the facilitative version of mediation that has claimed its popularity came into use during the contemporary times. 

In many South Asian societies, especially China and East Asia, litigation is seen as a shameful last resort, the use of which signifies embarrassing failure to settle the matter amicably in a non-confrontational manner.  Though it is unclear to what extent philosophy, culture and tradition influences practices, the connection between the prominence of mediation and a Confucian heritage in China has been noted repeatedly by scholars and researchers. In the view of Chinese philosopher Confucius, lawsuit or litigation symbolises and indicates a disruption of the natural harmony that was thought to exist in human affairs.

 Generally, law is considered as a command of sovereign which is backed by coercion. Their view was that the optimum resolution of most disputes was to be achieved not by the exercise of force but by moral and non-coercive persuasion used in mediation. According to Leonard L. Riskin, Professor of Law at the University of Houston Law Center, US,   court litigation leads to litigiousness and quarrelsomeness to shameless concern for one's own interest to the detriment of the interests of society.  Professor Riskin in an article refers to the context of China and writes “In China up to the end of the 19th century, mediation was helped along by an enormously corrupt court system that the Emperors had no desire to improve. 

In the words of the K'ang-hsi Emperor (1662-1722), court litigations would tend to increase to a huge proportion if people were not afraid of the court system, and if they felt confident of always finding in them ready and perfect justice. As man is apt to delude himself concerning his own interests, contests would then be perennial, and half of the empire would not suffice to settle the lawsuits of the other half. Those who have recourse to the court system should be treated without any pity, and in such a manner that they shall be disgusted with law, and tremble to appear before a justice. 

Adversarial system

Mediation differs from litigation somewhat in purpose, orientation, and direction. Mediation promises harmony, reciprocity and non-hostility whereas court litigation is premised upon the adversarial system based on the opposing sides acting as opponents who compete to convince the judge. The lawyers are given free choice in terms of which issues are presented, what evidence to adduce in support of their submissions and what witnesses to call. The judge presides over the trial and rules on disputed issues of procedure and evidence. It is not open to the judge in an adversarial system to enquire beyond the facts and evidence that are presented by the opposing lawyers.

Lawyers in Nepal are trained in adversarial jurisprudence of the court system disposed to defend their clients and demonise their opponents. Only training and orientation like the ones mentioned above can impart them non-adversarial attitudes to help the disputing parties to restore harmony and stable relationships.

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