Mediation centres may cut court load -- Nepal's mediation centers successful by Kamal Raj Sigdel

Mediation centres may cut court load

KAMAL RAJ SIGDEL

KATHMANDU, May 24 - A legal battle between a government school and an NGO (name withheld) over land went on for 45 odd years at the Supreme Court. But there still was no end in sight. The two parties then opted to take help of the Mediation Centre, a Supreme Court (SC) initiative. The case ended swiftly with no one losing.

There are many such success stories. The SC began practicing mediation in 2006, as a new method of "non-binding dispute resolution". The process involves a neutral third party that tries to help the disputing parties to reach a mutually agreeable win-win solution.

Of the 354 cases referred to the Mediation Centre at the SC in the past three years, 20 percent have been resolved successfully despite Centre's limited resources and amateur mediators. At present six mediation centres are operational across the country and, according to SC sources, 20 others will be soon established.

Both the Muluki Act 2020 of BS and Local Self Governance Act 2055 of BS have provisions for mediation but was not used for long because stakeholders underrated its potential.

The SC in 2006 realised that mediation centres would be the best way to unburden the case loads in the courts and the centres came into existence. Nepal's courts grapple with roughly 100,000 cases annually, half of them as backlogs.

Given the current 20 percent success rate, mediators project the figure could reach beyond 50 percent provided the challenges facing mediation centres are addressed.

Key challenges include lack of a separate act on mediation, policy, lack of competent human resources and lack of awareness on mediation process among lawyers and general public.

"There is no specific mechanism to nominate mediators and they are appointed arbitrarily," says former justice Shyam B Pradhan, a mediator who resolved the above-mentioned 45-year long lawsuit.

As a result few of the available mediators look at the bulk of the cases. For example, only 9 of the available 25 mediators dealt with 80 percent of the mediations executed under the Patan Appellate Court. One of them has single-handedly mediated more than 25 percent of the registered cases.

Besides, lawyers feel that mediation is a threat to their profession. A justice referring a case to mediation means people will no longer approach lawyers. "Lawyers feel that a successful mediation mechanism means taking away their livelihood," says Sujan Lopchan, a mediator. "There are several instances when lawyers advise the plaintiffs not take help of mediation centres."

Budget crunch is another hurdle. There is no specific policy to remunerate mediators. Hence they are basically volunteers. "To think of running such a big institution voluntarily is just unrealistic," says Pradhan.

At present the SC gives Rs. 300 per mediator per sitting as taxi fare, which mediators say is too little.

Related is the issue of skill development among the roughly 200 mediators practicing at present. Whatever skills they have learned are through a one-time 40-hour training provided by the National Judicial Academy.

Besides that, they do not get any refresher or advanced training, according to Ram P Neupane, Chief of the Mediation Centre at SC.

"If we could produce competent mediators, and clear the misunderstanding among lawyers and general public, the results would be significant," says Sri Kant Regmi, the member secretary of the policy-making authority called Mediation Committee at the SC.