Mukti Rijal

Alternative Dispute Resolution (ADR) tools have become increasingly popular in Nepal. Of them, mediation has been widely accepted and used to resolve disputes both in the courts and communities in Nepal. In Nepal's case, it should be admitted that judiciary has been at the lead to promote and expand mediation in institutional terms. The judiciary has formally introduced mediation for dispute settlements in the courts across all hierarchies-- supreme, high and district -- for decades.

Amicable settlement
The quest of the Nepali courts across all levels to promote mediation within their own respective precincts through referral of appropriate cases for amicable settlement is indeed a very welcome step. Though court referred mediation has not been effective as shown by the figures published in the Supreme Court’s annual report over the last few years due to several reasons. This writer believes that practising mediation for amicable settlement of the disputes under examination in the courts as part of the court annexed mechanism is a positive step in the right direction.
Similarly, mediation has been widely practised in both urban and rural communities of Nepal. Needless to say, community mediation has a long tradition and usage in Nepal. It has received the institutional formalization especially after the enactment of the Mediation Act and the Local Government Operation Act though in a distant succession. The Mediation Act stands out as the key milestone in the institutionalisation of facilitative mediation in Nepal. In South Asia, Nepal is the lone exception, barring Sri Lanka, to have enacted such n uniform and standard law to promote and institutionalize mediation in respective jurisdictions. One of the prominent features of the Mediation Act is the provision for the establishment of the Mediation Council as the apex governing body for promotion, regulation and development of mediation services in the country.
The council is mandated to provide relevant policy inputs and suggestions in reforming and strengthening mediation as an appropriate mechanism for dispute resolution services in Nepal. Another function of the council is to certify and accredit both individual mediators and institutions for providing mediation services. Moreover, the council is mandated to design standard curricula and resource materials for capacity development in the field of mediation. It can collaborate together with state and non-state organisations for capacity enhancement and development with a view to deliver quality mediation services.
These mandates of the council have been very important in promoting, upgrading, expanding and diversifying mediation services in the country. However, despite several constraints too, the council has carried out important functions that have contributed to institutionalization and development of mediation in the country.
With a view to providing further boost and dynamics to mediation as appropriate mechanism for dispute resolution in a systematic, well-articulated and planned manner, the council has worked out a five year strategic plan beginning from this year. This is poised to become an important guiding document for promotion, expansion and development of mediation services in the country. The document provides a succinct overview of the evolving situation of dispute resolutions in the country that has lent an impetus to the growth of mediation services in the court and community.
In the strategic plan, major institutional initiatives like the court regulations amendment to give room to mediated settlement of the cases under consideration in the court and umbrella mediation law enactment among others have been highlighted as the catalyst for the promotion and development of mediation. An important aspect of strategic plan document has been the clear spelling out of the council's strengths, weaknesses, opportunities and threats with reference to which priority choices and directions have been set and defined. The strategic plan highlights the institutional and organisational weaknesses of the council. The deficits have been taken cognizance to plan in harnessing available resources and opportunities in diversifying mediation services in the country. The plan outlines the areas where the major focus should lay in building infrastructural, institutional, organisational, technical, regulating and networking capacity of the council.
The Singapore Mediation Convention has opened up avenues for enforceability of cross-border commercial dispute settlements which Nepal should ratify, among others, to increase confidence of investors and also shore up the country's ease of doing business index. The Convention is not only a watershed in the development of international commercial mediation but also a milestone for multilateral cooperation to promote international commerce and business activities. The big economies in Asia like China, South Korea and India have signed the Convention underscoring the need that Nepal should consider to ratify it at the soonest. It is incumbent upon the Mediation Council to advocacy for and advise the government on the opportunities that can accrue with the ratification of the convention. This has been clearly mentioned in the strategic plan document. The COVID-19 pandemic has shown that there is a greater need for use of digital technology in enhancing virtual mediation services.
Mediation Council needs to work towards using advanced technology in making the mediation services effective in line with the needs of the modern era. This aspect has been clearly spelt out in the strategic plan document. The resource and capacity constraints are bound to create impediments for the council to implement the actions outlined in the plan document. However, the strength of the plan document lies in the fact that it has clearly specified activities with the corresponding tentative budget estimates that would need for carrying out them.

Resource mobilisation
In answer to this question, registrar of the Supreme Court and member secretary of the Mediation Council Narayan Prasad Panthi shared with this author that the maximum collaborative efforts will be made to mobilise resources from different sources to address resource constraints and implement planned actions. As the strategic plan document is expected to have the larger ownership of the state and non-state actors, it is hoped the required funds will be mobilised and there will be no dearth of resources for its implementation.
Echoing the similar view the incumbent secretariat chief of the Mediation Council Bhadra Kali Pokharel explains that the action plan will be further worked out for each year based the availability of resources and planned activities will be implemented with care and prudence.
At this juncture, it is necessary that the government should extend all support to the Mediation Council not only by increasing the volume of resources to finance the implementation of the strategic plan but reforming the Mediation Act and other relevant legislations in conformity with the evolving national and global context.

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