Mukti Rijal

Today legal systems are said to be grounded or premised upon the rule of law, right to equality and equal protection of law. This means that justice is claimed to have been made available readily and equally to all. However, when it comes to actual delivery of justice in practice, access to justice is easier for some than for others, and for those unable to afford legal services, justice is very much difficult and inaccessible to obtain in the real sense of the term.

According to recent reports brought out by the judiciaries themselves, courts in almost all countries both in the developed and developing worlds are being flooded and overwhelmed by the unrepresented and unaided litigants. The number of unaided and unrepresented litigants has been enormously increasing in Nepal, too. As a result, courts have to deliver ex parte decision reasoning that the respondent did not appear the court with his or her counter-claims. While a number of factors are said to have influenced the existence of unrepresented and unaided litigants, the common perception is that the recent growth in the number of unrepresented litigants in the courts can be attributed to the prohibitive cost of litigation, fee of lawyers and the procedural hassles in the court.

Free legal aid
Litigants are being driven to bear the pains of injustice without taking a resort of legal action for claims or counter claims. They often choose to forgo the services of legal counsel or lawyers because of the fact that fees of legal counsels and the costs involved in initiating and pursuing a claim in court is simply unaffordable. Due to the constraints posed by poor financial conditions or inability to pay as bail or indemnity, poor people have also languished for years if not for decades in the prisons. The free legal aid being provisioned especially targeted for the indigent and poor litigants has not been efficient and effective enough to rescue the poor people from clutch of injustice.

According to a report published by the Brennan Centre for Justice, an entity established to honour justice Brennan in the US, there are approximately 10 million people who owe $50 billion or more in legal fines and obligations in the USA. Brennan was a strong believer in the importance of an independent judiciary who argued that cumbersome procedure should not be followed because it has severe impact upon substantive right of the people.

A significant number of the unrepresented litigants are behind bars and sentenced because they were unable to pay their dues and have defaulted on their legal financial obligations. This has caused a lot of issues around procedural fairness and resulted into overcrowding of jail populations. This shows the severe impact that the court fines, fees, and bail have on impoverished individuals and the marginalised groups of citizens. Impoverished individuals and marginalised groups face significant consequences for being unable to pay their legal financial obligations. For poor people, these consequences have an adverse impact, including job loss and continuing cycle of poverty.

As mentioned above, the unrepresented litigants and impugned offenders/defaulters have been constrained to hire legal counsel or settle the fines and payments for reason of their inability to pay. This poses a number of social, economic, psychological problems. The most notable issues associated with unrepresented litigants are its undesired impact on judicial efficiency, fairness and its independence. Though the law allows the right to self-representation for every litigant or the disputing party, this theoretical access to the courts is illusory and theoretical as the people do not have knowledge of law, not to talk of framing and fabricating the case and pleading in the court of law.

It is widely believed and also confirmed that alternative dispute resolution mechanism can improve this situation. The unrepresented litigants could be spared the ordeal of navigating court rules. The disputing parties would talk informally under the auspices of a neutral third-party mediator and independent dialogue facilitator so that the better results could be achieved with fewer hassles and almost with negligible costs. Dispute resolution through mediation contributes to improving participants’ subjective experiences like autonomy, emotional relaxation, and creative collaboration. As a result, mediation has been highlighted as a starting point for finding more permanent solutions to the surging tide of unrepresented litigants in many jurisdictions. Like judges, mediators are required to be neutral.

The presence of an independent and neutral mediator having a minimum knowledge of the law and the subject can close the information gap that lay-litigants may encounter in a dispute resolution proceeding. This can make the mediator aware of the limits defined and set forth by the law. This type of informed mediation services provides more freedom for mediators and dispute facilitators to choose their own approach to the mediation while maintaining neutrality and independence in the process.

Mediation process
An informed, knowledgeable and skillful mediator can contribute to making transformative changes in the mediation process keeping in mind the need for effective representation of the interests of all the disputing parties concerned. Needless to say, mediation process is based on the direct participation of the disputing parties in which they are enabled to tell their stories, needs, interests and engage in constructive dialogue to hammer out solution to the issues. This opportunity for direct self-representation to tell one’s own stories is the important principle of mediation that does not normally require any aid by lawyers or legal counsels which incurs heavy costs and financial obligations.

Alternative dispute resolution and, in particular, mediation, therefore, provides an attractive opportunity to mitigate the impact of unrepresented parties on the courts. Therefore, mediation should be identified and enhanced as a key tool not only to relieve pressure on the courts, its process should be refashioned to ensure that the needs and interests of disputing parties are effectively served to arrive at win-win outcome of the resolution.

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