After reading this article, you will be able to know about mediation law in Nepal and also the process of mediation.
Mediation is an informal confidential and voluntary settlement process in which an impartial/neutral third person, the mediator, works with the parties involved in a dispute to find a resolution that is acceptable to all the parties.
It opens a dialogue between disputing parties, and fosters mutual understanding, and cooperation between disputing parties. It is being used to help settle everything from school disputes to international conflicts.
Benefits of Mediation
- It is usually cheaper than litigation in court.
- It is usually faster than litigation.
- Mediators facilitate communication among parties.
- Helps parties to explore mutual understanding.
- Assists in defining and clarifying issues.
- Maximize the exploration of alternatives.
Mediation Law in Nepal
In Nepal, the Mediation Act 2068 was authenticated for the settlement of the dispute through community mediation, based on the procedure prescribed through mediation
The Supreme court of Nepal adopted court-referred mediation on the District Court Rules, 1995 (2052 B.S.) through the fourth amendment in 2003. Similarly, the Full Court of the Supreme court has adopted the Operational Guidelines for Mediation, 2004.
After three years of mediation practices, the Supreme Court also expands mediation on the Appellate Court and Supreme Court in 2006 through the amendment of court rules. By the initiation of the Supreme Court, the Mediation Act had been enacted by the Legislature-Parliament as an Umbrella Mediation Act in 2011, which visualized a high-level Mediation council in promoting and regulating the mediation process.
Settlement of Disputes through Mediation
Any agreement provides for the settlement of the dispute through mediation, the dispute concerned with that agreement shall be settled according to the procedure prescribed in the agreement.
Appointment of mediator
If there is a provision for the appointment of a mediator in the agreement, the mediator shall be appointed according to that provision. In the absence of such provision, mediator shall be appointed under the mediation act.
Mediator to be appointed by the adjudicating body
The adjudicating body issues an order to settle a dispute through mediation. If the concerned parties fail to appoint the mediator. The adjudicating body shall issue an order in the name of the concerned party to submit the name of the mediator within such period as specified by it.
The concerned party shall submit the name of the mediator to the adjudicating body within the period by the mutual consent of the parties and the adjudicating body shall appoint the person submitted by the parties as a mediator.
Appointment of the mediator in special circumstances
If a person appointed as a mediator, declines to provide mediation service or fails to act as a mediator the mediator falls vacant for any other reason, the vacancy shall be filled, within the time as consented to the parties, by appointing the next mediator through the same process which was followed earlier.
A mediator shall observe the following matters while discharging his/her duty as a mediator:
- To perform the duty related to mediation in an impartial manner.
- Not to perform an act with bias or prejudice towards any party or to avoid conduct that gives the appearance of the same.
- Not to conduct mediation by creating fear or terror against a party or by misleading or inducing a party.
- Not to have any financial transaction with a party until the dispute is resolved.
- To observe the code of conduct in the course of mediation.
Mediators may be removed
After the appointment of a mediator that if he/she is not qualified to be a mediator the concerned parties themselves from whom such mediator was appointed shall remove such mediator:
- If he/she commits any act against the matter of dispute or party in an unfair or fraudulent manner.
- If repetition of a mistake or irregularity is found in his/her act or activity or in the process of mediation.
- If he/she prolongs or delays the proceedings of mediation without a reasonable cause or shows reluctance in the proceedings of mediation.
The Process of Mediation
The parties may specify the procedure in the agreement. If there is no procedure specified in the agreement the court may specify the procedure to be followed. In other cases, the mediator adopts the appropriate procedures. The procedure should include the following elements:
- Providing an opportunity for the parties to produce their own claims and reply by the parties before the mediator.
- To hold a separate or joint meetings with the parties.
- To seek any information or evidence document from the parties
- To provide access to the relevant information to the parties.
- To seek alternative grounds for mediation from parties for resolving the dispute.
Procedure Settlement of case through mediation
If the parties agreed to mediation (compromise), the mediator shall prepare the document of compromise and cause the parties to sign in the document. The mediator also has to sign in it.
After signing the document, the case is settled. A copy of the deed of compromise has to be provided to each party. The mediator shall present the parties to the court along with the document for the execution of mediation.
The court has to execute the compromise as prevailing law. If the parties do not agree to compromise, the mediator has to submit a report to the court within seven days. After the receipt of the report from the mediator, the court has to decide the case according to law.
The proceedings of mediation to be terminated
The proceeding of mediation shall be terminated in the following circumstances:
- If parties do not agree to mediation.
- If parties do not appear before the mediator on the date specified by the mediator.
- If the proceeding of mediation fails to move ahead due to the absence of a party on such date.
- If the parties agree with the term and conditions of mediation and the document of mediation is prepared.
Also Read: Arbitration Law in Nepal
Qualification of mediator
- A Nepali citizen,
- Attained Twenty Five years of age,
- Completed at least a Bachelor’s Degree from a recognized academic institution,
- Completed mediation training for a period as prescribed,
- Having a sound mind,
- Not convicted by a court in a criminal charge involving moral turpitude,
- Has not been adjudged bankrupt.
Constitution of the Board
There shall be a Board to be known as the Mediation Board for performing the function of regular reform, regulations, and control of the mediation procedure and the Board shall consist of the following members:
- A sitting judge of the Supreme Court designated by the Chief of Justice on the recommendation of the
- Judicial Council -Chairperson
- Secretary, Ministry of Law and Justice -Member
- Secretary, Ministry of Local Development -Member
- Deputy Attorney General, Office of the Attorney General -Member
- General Secretary, Nepal Bar Association -Member
- A person designated by the Board from among the representative organizations working in the field of industry and commerce – Member.
- Two Women designated by the Board from among the women working as a mediator or the representatives of the agency involved in mediation or working in the field of mediation – Member
- Two persons with at least a woman designated by the Board from among the representatives of social workers and civil society -Member
- Registrar, Supreme Court -Member-secretary
Functions, duties, and powers of the board
- To conduct or cause to conduct various programs which promote mediation to settle disputes.
- To monitor and evaluate the institutional capacity of the agency which provides mediation services and the quality of training.
- To cause to conduct training and interaction programs for the enhancement of the expertise of the mediators.
- To monitor or cause to monitor the act and activity of a mediator.
In a nutshell, it is said to be a person with common sense, persistence and patience shall be involved in mediation as a mediator. He/she has many techniques of negotiation, skills of human dynamics, effective listening powers, restatement, and articulation.
The mediator is said to be a facilitator who has the power to render the resolution of the conflicts. Quality of trust, neutrality, confidentiality, knowledge, optimistic are the basic quality needed to be a mediator.
Mediation is a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties.
Mediation law in Nepal guides all the process of mediation through the mediation act 2068.