Mediation is an alternative dispute resolution, Thesis of Law

Download Mediation is an alternative dispute resolution and more Thesis Law in PDF only on Docsity! Mediation A Clinical Law (ADR) Report submitted to Nepal Law Campus, Central Department of Law For the Requirements of Degree of BA.LL. B Submitted by: Sadikshya Acharya Roll no.: 58 BA.LL.B. Third Year Batch: 2072 B.A.LL.B. Program Nepal Law Campus Exhibition Road, Kathmandu November 2017 PREFACE This Report has been prepared as part of Clinical Law- I course of the curriculum of B.A.LL.B Program. The Clinical Legal Education encompasses not only theoretical study but ensures an efficient practical study, mainly focused on understanding how the law works in action. Here, the Alternative Dispute Resolution is learnt in connection and as a part of the clinical law. An overview of the basic concept of ADR is discussed in this report whereby the emphasis is given most specifically on Mediation as a kind of ADR process. The study is more descriptive than analytical. The report has been prepared based on the guidelines that was provided to us from the campus administration. - Sadikshya Acharya UNIT ONE GENERAL OUTLINE OF REPORT The second chapter of the report is dedicated to the introduction which portraits the basic concept of ADR, and its kinds namely Arbitration, Conciliation, Negotiation and Mediation. The third Chapter deals with the mediation and its general concept, role and responsibilities that a mediator has to fulfill during the entire process, the kind of cases that can be mediated or cases that are most likely to be settled through mediation, the various stages of mediation, the common terminologies used in mediation, principles and finally the two major types of mediation in practice i.e. court-based and community based mediation, followed by various legal practices of mediation in Nepal. The fourth chapter explores with the topic through a depiction of the field visit that we were taken to in the Supreme Court of Nepal, located in Kathmandu In addition to the field visit, in this chapter we will discuss about what we learned during our role play in the classroom. The final chapter is a concluding remark on what the study concludes, the major findings of the study. This last chapter will summarize the overall study which shows that there is still enough scope and room for mediation to grow and improvise in the future. UNIT TWO ALTERNATIVE DISPUTE RESOLUTION It is cardinal to first discuss the concept of ‘dispute’ antecedent to the discussion of Alternative Dispute Resolution Mechanism. Dispute, according to Black’s Law Dictionary, is a conflict or controversy especially one that has given rise to a particular lawsuit!. It is evident that the inception of any relationship between two or more people is the base for a dispute, as the gradual miscommunication or the lack of communication is certain. If the disputes are not nipped in the bud, it takes a bigger form. The disputing parties, as a result, contends that mutual agreement is unreachable since their views and interests are in opposition to each other. Gradually, the appreciation and respect between such disputing parties declines thereby giving birth to Conflict. A conflict is said to be the result of the escalation of long-term dispute. Therefore, arising of dispute or conflict is not a problem to be addressed but the crucial issue is to be addressed is how the dispute is settled. As a result, an efficient mechanism to resolve such disputes, is paramount, which can protect relationships”, and at the same time find a workable solution to the problem at an early stage.* The pages of dispute resolution, then, is to be turned. The process of resolving disputes by meeting at least some of each side needs and addressing their interest through various processes is called dispute resolution.* In same way, Alternative dispute resolution [hereinafter ADR] is a method of dispute resolution. ADR comprises of three words, “alternative”, “dispute”, “resolution” which is synonymous with the Nepali term, “Baikalpik”, “Bibad”, “Samadhan” respectively. It is clear that, from one + BRYAN A. GARNER, BLACK'S LAW DICTIONARY 505 (8th ed., Thomson 2004). ? Yona Shamir, Alternative Dispute Resolution Approaches and their Application, Israel Center for Negotiation and Mediation (ICNM), Israel, PCCP at 2, para 3(2001-2003). 3 DR. MADABHUSHI SRIDHAR, ALTERNATIVE DISPUTE RESOLUTION NEGOTIATION AND MEDIATION 79, (LexisNexis 2006). * Daily Blog, Program on Negotiation, Harvard Law School, (Nov. 25, 2017,5:00 PM). perspective, the word — “alternative” refers to looking outside the courtroom setting to resolve some disputes. As the term suggests, this form of dispute resolution is an alternative to a formal court hearing or litigation processes. In simple vein, settling the dispute beyond the formal process of litigation is called ADR. It includes techniques and processes that act as a means for the disagreeing parties to come to an agreement with or without the help of third party. ADR allows the disputant parties to come up with more creative solutions that a court may not legally allow to impose. ADR procedures are not intended to replace the courts but is in addition to the traditional court system. Worldwide, ADR has become institutionalized as part of many court systems and system for justice. As burgeoning court queues, escalating costs of litigation, delays continue to plague litigants; more countries have begun experimenting with the diversion routs to ADR programs.° The broad inclusiveness of ADR as dispute resolution can further be explained by the preference for confidentiality, and desire of parties to have greater control over the selection of the individual or individuals who will decide their dispute.® Narrowing down to the Nepalese context, the practice of referring parties to ADR procedures like mediation by the courts of Nepal in certain disputes is prevalent these days. It has been accepted and practiced as a legitimate and accessible mechanism of dispute resolution in Nepal. Its practice can be reflected both in the judicial institutions and local governance institutions, and the rural communities in Nepal for several years now. ADR has been functioning efficiently in Nepal also because it is backed by the Nepalese legislations, for example Mediation Act 2068, District Court Rule, High Court Rule and Supreme Court Rule, etc. ADR is thus an amicable procedure based on the good will of the parties with designed to resolve or at least reduce the tensions between various parts of communities and promote cooperation and collective interests in the society. 5 Prof. Saha, Tushar Kanti. Legal Methods, Legal Systems & Research. New Delhi: Universal Law Publishing, 2010. © Totaro Gianna, “Avoid court at all costs” The Australian Financial review, (Nov 14, 2008). Conciliation Conciliation is non-binding Arbitration. The Conciliator may indicate the strong and weak point of disputed cases and the consequence of failure to settle but s/he will not generally make a recommendation for settlement, unlike mediator will formulate his/her own recommendation on settle terms of specific dispute which led to mediation. Mediator is more neutral than conciliator. At the end of case mediator only can provide advice for both parties but conciliator can provide some pressure to settle the dispute. The neutral third party in this case is the conciliator who is also selected by the mutual consensus of the disputing parties prior to or after the dispute. The conciliators are the ones that possess the expert knowledge of the domain in which they conciliate. That is the conciliator are experts in the matters of dispute and thus they can suggest the terms of settlement on the basis of their expertise in subject matter. They are also government by the procedural rules agreed upon by parties and in most cases, they have a duty to provide legal implications concerning the issue. Conciliation more over capitalizes on the advisory fact and is not binding like Arbitrator. It is like mediation in a way that it tries to reconcile the conflicting interests and restore the goodwill of both the sides but in contrast to mediation that works facultatively. It works on advices. Mediation while implies an active involvement of the third person in the process of bringing the parties to an agreed solution, whereas conciliation is regarded as process where the conciliator is only a moderator of the dialogue between the parties in dispute.' The existing Nepalese legislation has no express provision providing for conciliation; but if we are to look into the historical aspect of conciliation in Nepal, we can find the practice of disputes in the community being settled by learned members of the community who played the role of judge, this process is identical to conciliation. 43 Prof. Dr. Bharat B. Karki, Commercial Mediation: International Provisions and Procedures, 10 Business L.J., Commercial Law Society Nepal, 5 (2012). Negotiation Negotiation is a dialogue intended to resolve disputes, to produce an agreement up on course of action, to bargain for individual or collective advantage or to craft outcomes to satisfy various interests. Officially there is no third party in Negotiation A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with object or arriving settlement of the dispute is Negotiation. Mediation is negotiation carried out with the assistance of a third party neutral. The mediator, in contrast to the arbitrator or judge, has no power to impose an outcome on disputing parties. But the negotiation is far private than the arbitration and mediation in which the disputing parties themselves negotiates. Mediation Mediation is a process of resolving disputes with the aid of a neutral person who help parties to identify issues and develop proposals to resolve their disputes. Unlike arbitration, the mediator is not empowered to decide disputes. It is a process where the parties to a pending case are directed by the court to submit their disputes to a neutral third party (the mediator), who works with them to reach a settlement of their controversy. The mediator acts as a facilitator for the parties to arrive at a mutually acceptable arrangement, which will be the basis for the court to render a judgment based on a compromise. The mediation includes terms conciliation. There are various organizations in Nepal like the Nepal Mediators Society, Community Mediators Society Nepal and many more that has been actively training mediators and providing mediation services to a great number of people. Even the District court has quite often started to refer family disputes to mediation thus carrying on the roots of mediation, to the modern legal system. The mediation process has been embraced by not just the legal community but also the common people, the community as a whole as it becomes more popular and effective in resolving disputes. Mediation thus helps achieve the ultimate ends of a dispute settlement process, that is restore the order in the society in such a way that it not just resolves disputes but mends the conflicting relationships and create a win-win situation.'* Nepal has been following court referred mediation through: Mediation Act, 2068 B.S. has come into force to address mediation. Rule No. 32 (a) to 32 (j) of District Court Rules 2052 B.S, Rule No. 53(a) to 53 (K) of Appellate Court Rules 2048 B.S and Rule No. 65(a) to 65(k) of Supreme Court Rules 2049 B.S. UNIT THREE MEDIATION Starting from the word ‘mediate’, which is derived from the Latin Word "Mediare" specifically means, "to be in the middle". Likewise, Mediation is one of the forms of ADR which involves the help of a third party, called a “mediator”, who always finds himself in middle of a dispute. Medition is an informal process in which a trained mediator assists parties to reach a negotiated settlement. The mediator does not decide who is right or wrong and has no authority to impose a settlement on the parties. Instead, the mediator helps the parties to jointly explore and reconcile their differences." In regards to the definition of mediation, different scholars have defined mediation in their own terms, which are mentioned as follows: Mediation is the intervention of an acceptable, impartial and neutral third party who has no authoritative decision-making power to assist contending parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute. 4 ERIC M. RUNESSON & MARIE-LAURENCE GUY, MEDIATING CORPORATE GOVERNANCE CONFLICT AND DISPUTES 14 (Global Corporate Governance Forum, Focus ,2007). 4S USAID, Alternative Dispute Resolution Guide 4, https://www.usaid.gov/sites/default/files/documents/1868/200sbe.pdf, (November 25, 2017,5:00 PM). At 234. Mediation A Clinical Law (ADR) Report submitted to Nepal Law Campus, Central Department of Law For the Requirements of Degree of BA.LL. B Submitted by: Sadikshya Acharya Roll no.: 58 BA.LL.B. Third Year Batch: 2072 B.A.LL.B. Program Nepal Law Campus Exhibition Road, Kathmandu November 2017 PREFACE This Report has been prepared as part of Clinical Law- I course of the curriculum of B.A.LL.B Program. The Clinical Legal Education encompasses not only theoretical study but ensures an efficient practical study, mainly focused on understanding how the law works in action. Here, the Alternative Dispute Resolution is learnt in connection and as a part of the clinical law. An overview of the basic concept of ADR is discussed in this report whereby the emphasis is given most specifically on Mediation as a kind of ADR process. The study is more descriptive than analytical. The report has been prepared based on the guidelines that was provided to us from the campus administration. - Sadikshya Acharya UNIT ONE GENERAL OUTLINE OF REPORT The second chapter of the report is dedicated to the introduction which portraits the basic concept of ADR, and its kinds namely Arbitration, Conciliation, Negotiation and Mediation. The third Chapter deals with the mediation and its general concept, role and responsibilities that a mediator has to fulfill during the entire process, the kind of cases that can be mediated or cases that are most likely to be settled through mediation, the various stages of mediation, the common terminologies used in mediation, principles and finally the two major types of mediation in practice i.e. court-based and community based mediation, followed by various legal practices of mediation in Nepal. The fourth chapter explores with the topic through a depiction of the field visit that we were taken to in the Supreme Court of Nepal, located in Kathmandu In addition to the field visit, in this chapter we will discuss about what we learned during our role play in the classroom. The final chapter is a concluding remark on what the study concludes, the major findings of the study. This last chapter will summarize the overall study which shows that there is still enough scope and room for mediation to grow and improvise in the future. UNIT TWO ALTERNATIVE DISPUTE RESOLUTION It is cardinal to first discuss the concept of ‘dispute’ antecedent to the discussion of Alternative Dispute Resolution Mechanism. Dispute, according to Black’s Law Dictionary, is a conflict or controversy especially one that has given rise to a particular lawsuit!. It is evident that the inception of any relationship between two or more people is the base for a dispute, as the gradual miscommunication or the lack of communication is certain. If the disputes are not nipped in the bud, it takes a bigger form. The disputing parties, as a result, contends that mutual agreement is unreachable since their views and interests are in opposition to each other. Gradually, the appreciation and respect between such disputing parties declines thereby giving birth to Conflict. A conflict is said to be the result of the escalation of long-term dispute. Therefore, arising of dispute or conflict is not a problem to be addressed but the crucial issue is to be addressed is how the dispute is settled. As a result, an efficient mechanism to resolve such disputes, is paramount, which can protect relationships”, and at the same time find a workable solution to the problem at an early stage.* The pages of dispute resolution, then, is to be turned. The process of resolving disputes by meeting at least some of each side needs and addressing their interest through various processes is called dispute resolution.* In same way, Alternative dispute resolution [hereinafter ADR] is a method of dispute resolution. ADR comprises of three words, “alternative”, “dispute”, “resolution” which is synonymous with the Nepali term, “Baikalpik”, “Bibad”, “Samadhan” respectively. It is clear that, from one + BRYAN A. GARNER, BLACK'S LAW DICTIONARY 505 (8th ed., Thomson 2004). ? Yona Shamir, Alternative Dispute Resolution Approaches and their Application, Israel Center for Negotiation and Mediation (ICNM), Israel, PCCP at 2, para 3(2001-2003). 3 DR. MADABHUSHI SRIDHAR, ALTERNATIVE DISPUTE RESOLUTION NEGOTIATION AND MEDIATION 79, (LexisNexis 2006). * Daily Blog, Program on Negotiation, Harvard Law School, (Nov. 25, 2017,5:00 PM). perspective, the word — “alternative” refers to looking outside the courtroom setting to resolve some disputes. As the term suggests, this form of dispute resolution is an alternative to a formal court hearing or litigation processes. In simple vein, settling the dispute beyond the formal process of litigation is called ADR. It includes techniques and processes that act as a means for the disagreeing parties to come to an agreement with or without the help of third party. ADR allows the disputant parties to come up with more creative solutions that a court may not legally allow to impose. ADR procedures are not intended to replace the courts but is in addition to the traditional court system. Worldwide, ADR has become institutionalized as part of many court systems and system for justice. As burgeoning court queues, escalating costs of litigation, delays continue to plague litigants; more countries have begun experimenting with the diversion routs to ADR programs.° The broad inclusiveness of ADR as dispute resolution can further be explained by the preference for confidentiality, and desire of parties to have greater control over the selection of the individual or individuals who will decide their dispute.® Narrowing down to the Nepalese context, the practice of referring parties to ADR procedures like mediation by the courts of Nepal in certain disputes is prevalent these days. It has been accepted and practiced as a legitimate and accessible mechanism of dispute resolution in Nepal. Its practice can be reflected both in the judicial institutions and local governance institutions, and the rural communities in Nepal for several years now. ADR has been functioning efficiently in Nepal also because it is backed by the Nepalese legislations, for example Mediation Act 2068, District Court Rule, High Court Rule and Supreme Court Rule, etc. ADR is thus an amicable procedure based on the good will of the parties with designed to resolve or at least reduce the tensions between various parts of communities and promote cooperation and collective interests in the society. 5 Prof. Saha, Tushar Kanti. Legal Methods, Legal Systems & Research. New Delhi: Universal Law Publishing, 2010. © Totaro Gianna, “Avoid court at all costs” The Australian Financial review, (Nov 14, 2008). Conciliation Conciliation is non-binding Arbitration. The Conciliator may indicate the strong and weak point of disputed cases and the consequence of failure to settle but s/he will not generally make a recommendation for settlement, unlike mediator will formulate his/her own recommendation on settle terms of specific dispute which led to mediation. Mediator is more neutral than conciliator. At the end of case mediator only can provide advice for both parties but conciliator can provide some pressure to settle the dispute. The neutral third party in this case is the conciliator who is also selected by the mutual consensus of the disputing parties prior to or after the dispute. The conciliators are the ones that possess the expert knowledge of the domain in which they conciliate. That is the conciliator are experts in the matters of dispute and thus they can suggest the terms of settlement on the basis of their expertise in subject matter. They are also government by the procedural rules agreed upon by parties and in most cases, they have a duty to provide legal implications concerning the issue. Conciliation more over capitalizes on the advisory fact and is not binding like Arbitrator. It is like mediation in a way that it tries to reconcile the conflicting interests and restore the goodwill of both the sides but in contrast to mediation that works facultatively. It works on advices. Mediation while implies an active involvement of the third person in the process of bringing the parties to an agreed solution, whereas conciliation is regarded as process where the conciliator is only a moderator of the dialogue between the parties in dispute.' The existing Nepalese legislation has no express provision providing for conciliation; but if we are to look into the historical aspect of conciliation in Nepal, we can find the practice of disputes in the community being settled by learned members of the community who played the role of judge, this process is identical to conciliation. 43 Prof. Dr. Bharat B. Karki, Commercial Mediation: International Provisions and Procedures, 10 Business L.J., Commercial Law Society Nepal, 5 (2012). Negotiation Negotiation is a dialogue intended to resolve disputes, to produce an agreement up on course of action, to bargain for individual or collective advantage or to craft outcomes to satisfy various interests. Officially there is no third party in Negotiation A non-binding procedure in which discussions between the parties are initiated without the intervention of any third party with object or arriving settlement of the dispute is Negotiation. Mediation is negotiation carried out with the assistance of a third party neutral. The mediator, in contrast to the arbitrator or judge, has no power to impose an outcome on disputing parties. But the negotiation is far private than the arbitration and mediation in which the disputing parties themselves negotiates. Mediation Mediation is a process of resolving disputes with the aid of a neutral person who help parties to identify issues and develop proposals to resolve their disputes. Unlike arbitration, the mediator is not empowered to decide disputes. It is a process where the parties to a pending case are directed by the court to submit their disputes to a neutral third party (the mediator), who works with them to reach a settlement of their controversy. The mediator acts as a facilitator for the parties to arrive at a mutually acceptable arrangement, which will be the basis for the court to render a judgment based on a compromise. The mediation includes terms conciliation. There are various organizations in Nepal like the Nepal Mediators Society, Community Mediators Society Nepal and many more that has been actively training mediators and providing mediation services to a great number of people. Even the District court has quite often started to refer family disputes to mediation thus carrying on the roots of mediation, to the modern legal system. The mediation process has been embraced by not just the legal community but also the common people, the community as a whole as it becomes more popular and effective in resolving disputes. Mediation thus helps achieve the ultimate ends of a dispute settlement process, that is restore the order in the society in such a way that it not just resolves disputes but mends the conflicting relationships and create a win-win situation.'* Nepal has been following court referred mediation through: Mediation Act, 2068 B.S. has come into force to address mediation. Rule No. 32 (a) to 32 (j) of District Court Rules 2052 B.S, Rule No. 53(a) to 53 (K) of Appellate Court Rules 2048 B.S and Rule No. 65(a) to 65(k) of Supreme Court Rules 2049 B.S. UNIT THREE MEDIATION Starting from the word ‘mediate’, which is derived from the Latin Word "Mediare" specifically means, "to be in the middle". Likewise, Mediation is one of the forms of ADR which involves the help of a third party, called a “mediator”, who always finds himself in middle of a dispute. Medition is an informal process in which a trained mediator assists parties to reach a negotiated settlement. The mediator does not decide who is right or wrong and has no authority to impose a settlement on the parties. Instead, the mediator helps the parties to jointly explore and reconcile their differences." In regards to the definition of mediation, different scholars have defined mediation in their own terms, which are mentioned as follows: Mediation is the intervention of an acceptable, impartial and neutral third party who has no authoritative decision-making power to assist contending parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute. 4 ERIC M. RUNESSON & MARIE-LAURENCE GUY, MEDIATING CORPORATE GOVERNANCE CONFLICT AND DISPUTES 14 (Global Corporate Governance Forum, Focus ,2007). 4S USAID, Alternative Dispute Resolution Guide 4, https://www.usaid.gov/sites/default/files/documents/1868/200sbe.pdf, (November 25, 2017,5:00 PM). At 234. role is to do anything and everything necessary to assist parties to reach agreement. In serving this end, the mediator may take on any or all the following roles:!° Convener Educator Communicating Facilitator Translator Questioner and Clarifier Process Advisor Counselor Catalyst Responsible Record Holder Some additional roles of the mediator a mediator needs to play in the process of mediation are discussed below:7° Communication Plumber; mediator opens up communication channel between the parties and keeps them open. That is to say, mediator creates such an environment where the parties can initiate communication between each other that had been clogged due to the dispute between them. Legitimizer; mediator helps parties recognize the right to be involved. It is the mediator who shows the path to the parties that the dispute between them can be solved through their own effort, and that requires both the parties’ active involvement in the dialogue. Explorer; mediator helps those involved parties to approach the problem. A mediator by indulging in the communication between and with the parties can come to know multiple 19 DR. MADABHUSHI SRIDHAR, ALTERNATIVE DISPUTE RESOLUTION NEGOTIATION AND MEDIATION 254, (LexisNexis 2006). 20 CHRISTOPHER W. MOORE, THE MEDIATION PROCESSES; PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 25- 28, (San Francisco: Jossey-Bass Publishers, 1986). dimensions of the dispute and it possible root and solution. In this manner the mediator also functions as an explorer. Reality checker; mediator keeps parties form exploring the fantasy so as to find solutions. The mediator monitors the dialogue between the parties and keeps it in the correct path. Mediator creates a roadmap and prevents the party from being derailed off the decided path. Resource worker; mediator finds appropriate resources and links them to the parties in form of possible options for solution of the problem. Although it is not to be forgotten that mediator’s role regarding finding solution is limited to mere suggestions and recommendation, the suggestions of mediator can largely create the parties to utilize such suggestions as a resource material. Skill builder; mediator helps parties build good communication and problem solving skills. Like a tour guide guides the tourists around places, the mediator also helps in making the parties perform in a versatile manner in course of the dialogue and solve the problem in a more effective fashion. Drill sergeant; mediator takes the initiative, if necessary, to keep the negotiations moving forward. Just like a military instructor guides the new recruits to make them ready for battle, the mediator also keep the parties in such a position where none of the parties over powers the other creating an unbalanced situation. Carpenter; a mediator frame and reframe issues, in that regard the mediator is a carpenter of creation of issues. The mediator frames the entire process of mediation, mediator sands the dialogue where necessary, identifies where polishing and scraping is to be done and several tasks as such so as to create a proper outcome from mediation. PY Re Facilitator; mediator provides processes for achieving results and improving relationships. The primary and the most important job of the mediator is facilitation. It is the responsibility of mediator to assist the parties to present their stories, opinion and suggestions to resolve the dispute. In context of Nepal, according to the Mediation Act 2011, 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 favoritism, 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 to a party. Not to have any financial transaction with a party until the dispute is resolved. Not to commit any act contrary to this Act or Rules framed there under in regard to mediation process. Not to make any economic transaction or not to do any other act and activity that falls under the conflict of interest in the course of mediation. NATURE OF CASES The following are the list of various nature of civil cases where mediation would be appropriate method of dispute resolution: Cases arising from sourced personal relationships: Disputes relating to matrimonial causes, maintenance, custody of children. Disputes relating to partition/division among family members/ co-parceners/ co-owners. Disputes relating to partnership among partners. Cases relating to the commerce and contracts: Dispute arising out of contracts. Disputes relating to specific performance. Disputes between suppliers and customers. Disputes between bankers and customers. A party demands for getting the partition share from his mother, same way mother says that she cannot provide it. But, why does he want the land, defines interests. If the other party is unwilling to share the interests, good enquire methods can be embraced to get the interests. As a mediator, he must identify the positions of the parties to the conflict and the issues that divide them. Further, their perceptions and misperceptions of themselves and their antagonists, of the course of the conflict. The mediator should differentiate between the stated positions and the underlying interests of the key actors. Even if issues being contested are settled, actors’ interests might continue to drive the conflict. Some of these interests may be legitimate and could be satisfied by means other than conflict. The following questions are to be addressed: Who has an interest in keeping the conflict going? How do the issues, positions, and interests of the antagonists line up? In addition to that, Mediator must be well aware about the differences between the interests and the position of the parties, to identify them. The main differences are: In position, a party says the exact thing he wants. But interest is not revealed unless mediator asks why he wants it. Interests are always the concealed parts, which is hidden within the position. While focusing on the position in the process of mediation, only one solution may be obtained, which has high chances of eliminating the fulfilment of interests’ part. But if mediation is carried out by centering the interests then much of best solutions can be obtained. The positions are mostly demeaned, degrading, made in an attacking manner and do not resolve disputes in an acceptable means (if resolved), but the interests resolve the disputes humbly with positive results obvious on the way. Position is only one stipulation but interests are the source of inspiration to the other party. Position has a narrower scope in mediation. If the mediation is centered within the position then it terminates the chances of creative talks, does not fulfil the interests and requirements of the parties, eradicates the possible peaceful resolution to the disputes, makes one party win and other party lose and even may create crooked relationship between the parties of dispute. However, interests are the possible answers that can be expressed while asking why the demand has been made. The mediation focused on interests always maintain better relationship between the parties and fulfils the requirements of the parties by bringing into account the peaceful means of dispute resolution. Overall, interests have broader scope. Furthermore, the difference can be clarified from the illustration given below: For example: A and B are fighting for a piece of apple. A says that “I want the apple”. This is his position. If A says, “I want the apple, because I like apple juice”, this will be his interest. It is important to distinguish between position and interest to reach a settlement: Positions Interests What they say they want Why they want it Positions are surface statements of where Interests are a party’s underlying reasons a person stands, and rarely provide insight or values Interests explain why someone into underlying reasons. takes a certain position. Hence, for turning the position into interests and identifying them, the mediator must possess the required skills and acknowledgement of mediation parameters. Understanding underlying issues Building a listening oriented process It is in the nature of conflict that one side often stops listening to what the other is saying. Taking time to explore the issues also enables the mediator to build upon the opening session to establish the principle of listening. Establishing the main points of dispute Over time, and in the midst of the emotions that lead to and arise from disputes, the parties may have lost sight of the real issues at stake. As a mediator, you can bring a clear mind and vision to a confused situation by encouraging parties to ask clarifying questions that may lead to a better understanding of the underlying issues. This does not mean trying to establish a common understanding of everything at the outset. Rather, it is about establishing a common understanding of what is actually in dispute. One party may think it is about one thing and the other may be focused on a different issue. Clarifying each party’s perspectives enables the parties and the mediator to see the terrain that has to be worked if an agreement is to be reached. Uncovering useful information Most parties know things — have information — that they would prefer not to reveal but which may be relevant, and this may need to be brought out if a settlement is to be reached. The mediator’s role at this stage is to observe. What parties say may have inconsistencies or other hints that may be worthwhile to pursue. At this early stage of the mediation, it is often better to note, rather than elicit, any options, common ground or agreements in principle that have been incidentally raised by any of the parties. These may serve as a good source of ideas for the next stage of the mediation — when they move into negotiating. Helping a party understand its needs and interests As the parties’ stories unfold, the mediator can probe more deeply to understand their underlying interests and needs, and ensure that they also gain a fuller understanding of their own. These are what will enable the resolution later, and it is crucial to unpack them as much as possible. More often during caucus sessions than joint meetings, the parties can open up to the mediator about their real needs and interests without fear of weakening any negotiating position or exposing vulnerabilities. Such confidential sessions can give the mediator an opportunity to move beyond the posturing and encourage the parties to focus on their real needs and interests. Understanding the other party’s needs and interests better It is not only important for a party to understand its own needs better, but it is crucial that it also be thinking about the needs of the other party. The more it understands the constraints and demands the other faces, the easier it will be to find a realistic solution. Indeed, getting a party to think about the way the other party views the dispute and its likely response to aggressive behavior or settlement offers is often called “reality testing,” which is discussed further below. A key purpose of mediation, and indeed what some view as its primary goal, is to foster fuller understanding between the parties so that, knowing where each one is coming from, they are capable of, and responsible for, finding the solution. Spending time with one party considering the way the other party views the dispute also helps introduce a dimension of what Scottish Summarizing the other side of the case more fully. Taking more account of the welfare of one person than another. * Using one person’s name more. Showing that they have common activities or interests outside the mediation. Conflicts of Interest A conflict of interest is a dealing or relationship that might create an impression of possible bias. The mediator has a responsibility to disclose all actual and potential conflicts that are reasonably known to the mediator and could reasonably be seen as raising a question about impartiality. Competence A mediator shall mediate only when the mediator has the necessary qualifications to satisfy the reasonable expectations of the parties. The content of the mediation is confidential Within the mediation itself The mediator must not divulge any confidences that are shared with them unless given permission to do so. Unless someone shares a criminal intent or act that involves harm to self or other. * In respect of further proceedings (except with the express permission of both sides) * In order for people to feel safe to explore their fears and anxieties the process must be perceived to be entirely confidential. The mediator shall not disclose any matter that a party expects to be confidential unless given permission by all parties or unless required by law or public policy. Quality of the Process A quality process requires a commitment by the mediator to diligence and procedural fairness. Fees A mediator shall fully disclose and explain the basis of compensation, fees, and charges to the parties. The parties should be provided sufficient information about fees at the outset of a mediation to determine if they wish to retain the services of a mediator. Mediation is non-adjudicative. Mediation is not about judging a dispute; a verdict is not an outcome of mediation process. In fact, mediation is about finding an amicable solution in regards to the ongoing problem through the dialogue of the party facilitated by the mediator. Processes of Mediation The existing Nepalese legislation concerning Mediation has provided a particular set of provisions for carrying out the process of mediation, which is given as follows: First stage: Introduction (Mediator’s Opening statement) Second stage: Parties tell their story Third stage: Joint session Fourth stage: Separate session (also known as Caucus) Fifth stage: Seeking alternatives and Reaching an agreement Sixth stage: Closing Seventh stage: Post mediation (Evaluation) First stage: Introduction (Mediator’s Opening statement) The first and the foremost step involves the introduction of the parties where all the three parties i.e. the disputants and the mediator introduce themselves. The physical setting also becomes an important element, the arrangement in the way how the parties are sitting also affects the entire process of mediation. The mediator will then give an opening statement. What mediator should do in the opening statement is identify himself or herself to the parties. This introduction not only includes the mediator's identity, but also the qualifications of the mediator. This helps in establishing the neutral character and trust between the mediator and the disputant parties. The opening statement during the introductory remarks will set out the ground rules for the mediation.”3 These ground rules are what help the mediation move along smoothly. These ground rules will then be followed throughout the mediation process. ?3 Yona Shamir, Alternative Dispute Resolution Approaches and their Application, Israel Center for Negotiation and Mediation (ICNM), Israel, PCCP (2001-2003). GROUND RULES Respect one another. Offensive language is prohibited. No interruption is allowed while speaking. Mobile phones must be switched off. The parties will subsequently be asked if they have any questions regarding the matter. If the parties are satisfied, the process will move to the next step. Second stage: Parties tell their story At this stage the mediator listens to each party explain the situation (formal or informal opening statements). Each person is given the opportunity to give a short account of the issues that they want to talk about in an uninterrupted manner. Most often, the person who requested the mediation session will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party.74 After each account the mediator will give a feed back in neutral and non-judgmental way, setting out the main issues and feelings. 24 Jessica A. Stepp, HOW DOES MEDIATION PROCESS WORK, (Nov. 30, 2017, 8:58AM), https://www.mediate.com/articles/steppj.cfm. °5 Rhizome guide to Stages of Mediation, www.rhizome.coop, at 2. Shift parties to a solution-finding mood. Encourage parties to find terms that are mutually acceptable. Fifth stage: Seeking Alternatives and reaching an agreement At the stage where parties have indulged themselves in vigorous dialogues and explored the preliminary possible solutions, the mediator will then propose a brainstorming session to explore potential solutions. This can lead to a final agreement, which extinguishes the conflict and provides a new dimension for future relations. This step helps the parties to find out and select the best option as well as to understand the value of the selected option. Hence, the parties negotiate through the mediator until a mutually acceptable settlement is found. As an area of agreement is reached, the mediator will clearly articulate this, secure agreement from both parties and record it. However, if the settlement is not found and agreement is not possible, the case is sent back to the referral court. Sixth stage: Closing At this stage, the meeting will be concluded by the mediator who will re-confirm the confidentiality of the process. Once the parties have agreed upon the terms of settlement, the mediator uses her/his notes to write down a clear and detailed agreement and then orally confirms the terms of settlement. Parties review the agreement and sign it. The agreement should be signed by all the parties to the dispute ad their counsel. Thereafter a copy of the agreement would be furnished to the parties while the original would be sent to the referral court for drawing up a Decree in accordance with the agreement. The written agreement should: Clearly specify all the material terms agreed to. Be drafted in plain, precise and unambiguous language Be concise Use active voice. Ensure that neither of the parties feel that he or she has ‘lost’; Be sufficiently clear and definite in its terms to ensure that the agreement is executable in accordance with law. Be complete in its recitation of the terms. If an agreement is not reached, the mediator will review whatever progress has been made and advise every one of their options, such as meeting again later, going to arbitration, or going to court or may attempt to gain agreement from the parties as to what the issues are and to how they will proceed in the future. Finally, there will be a mediator’s Closing statement. The mediator shall briefly thank the parties for their coordination and work during the mediation. He or she also congratulates the parties for their efforts whether or not they have reached an agreement. Seventh stage: Evaluation Accordingly, the parties will be given the opportunity to complete an evaluation of the mediator and the mediation process. The mediator will also undertake a process of self-evaluation, feeding any suggestions for improvements. No personal information will be revealed as part of this process. In this way the overall mediation process follows a series of steps or procedure. The process becomes successful with active cooperation and coordination between mediator and the participants. MEDIATION IN NEPAL Court Referred Mediation The long practice of compromise in the cases pending in the courts can be traced from following essence: Section 182 of the chapter on court procedure of Country Code, 1963 has provided recognition to compromise. However, such compromise is not outcome of mediation. It is like negotiation. Parties themselves initiate for negotiation and compromise with help of Judges, lawyers or other social activists. The second Conference of Justices of Supreme Court and Chief Judges of Appellate Courts, 1994 recommended the application of mediation process in Court and the third Conference 1995, recommended to apply court initiated mediation within Kathmandu valley as a pilot program and also suggested that to be widen the area of cases and to make procedure for mediation. Similarly, the sixth conference 1998 had emphasized to proper law on court initiated mediation.’” Then, the Report of Court Management Committee, 1998 (2055 B.S.) also has recommended to implement the proposals adopted by the those Conference of Justices of Supreme Court and Chief Judges of Appellate Courts regarding the adoption of alternative dispute resolution resces28 processes”. Subsequently, the Supreme Court of Nepal has introduced mediation for court cases by adopting court annexed and court referred mediation for settlement of disputes. The court related mediation program is coordinated by the Mediation Committee at the Supreme Court. Likewise, The District Court Rules 2052, has incorporated the provisions regarding court referred mediation under rule 32a through 32n of the District Court Rules. In 2003, the Supreme Court, via the fourth amendment in the District Court regulations, formally initiated the Court Referred Mediation (CRM) program to enhance people’s access to justice. With some modifications and provisions, CRM has now been adopted in all tiers of court for annexed and referred mediation.” In Court-annexed mediation, the dispute is resolved through mediation centers annexed to the court wherein court-referred mediation, the cases are referred to mediation centers outside the courts. On paper, court-referred mediation looks like a perfect solution to an overburdened court system and a poorly regulated mediation sector. However, concerns over corruption, low success rates and time delays (if the mediation fails the parties have to go back to court) deter many from using this service. 27 Shrikanta Paudel, “An overview: Effectiveness and Challenges of Court referred mediation’, 69 Kanoon, 16 (2006). 28 A Recommendation Report on Court Management, Supreme Court Management Committee, 13(1998). 2° A Study of Court Referred Mediation in Nepal, Prepared By: Community Mediators’ Society Nepal (Dec, 2012). were often handed down based on power relationships. For instance, weaker parties, such as those from marginalized social groups, shied away from asserting claims. They were not the typical form of mediation because unlike in mediation the village heads gave decisions to issues. However, elements of mediation are somewhat reflected in this form of system. In 1990, Nepal underwent two noteworthy changes: the end of the party-less Panchayat system and a strong formal judicial structure. Both these changes had an impact on the then prevailing village-level dispute resolution. In 1999, the government passed the Local Self-Governance Act, 1999 which did take on the matter of local mediation, by strengthening and defining the judicial role of the Village Development Committees (VDCs). Local Self-Governance Act, 1999 The right to village development committee and municipality for hearing and decides some specific cases of civil nature is ensured under the aforementioned Act. Cases pending in these bodies are opt for the mediation and if such mediation does not succeed then case is decided by the process of arbitration it is the process of Med —Arb or hybrid process.*” The Village Development Committee and the municipality had the power to hear and settle at first instance the cases within such village development areas and municipality area from such date as may be prescribed by Government of Nepal by publishing a notification in the Nepal Gazette. Judicial power of Village Development Committee and Municipality under the local Self Government Act, 1999 has mentioned the following cases that can be settled in the local level. Cases on boundary of land, Sandhi Sarpart (inconvenience in respect of boundary or way-outs), Aali Dhur, canals, dams, ditches or allocation of water and encroachment on roads or way-out. Cases on forced labour (Beth-begar) and cases under the Chapter on Wages. Cases on compensation for damage of crops. Cases under the Chapter on Paupers. *7 Shree Kanta Paudel, Access to Justice through ADR in Banking Disputes in Nepal, ADR COMMERCIAL LAW JOURNAL, Vol. 1, at 105, Corporate Governance Forum Nepal, Kathmandu, Nepal, (2012). SN DY 10. 11. Cases under the Chapter on Missing and Finding of Quadrupeds. Cases under No.8 and 9 of the Chapter on Construction of Houses. Cases under the chapter on Deposits except those under No.5 of that Chapter. Cases on providing expenses for fooding and clothing according to status and income under No.10 of the Chapter on Partition. Cases on uses of water bank and security of public property. Cases on Pasture land, grass, fuel woods. Except those cases referred to Annex -1 and Annex-2 of the Government Cases Act ,2049 such other cases as assigned by Government of Nepal by publishing a notification in the Nepal Gazette.** Muluki Ain 2020 The legal provision relating to mediation can be found in No. 182 of the code which specifies what cases can or cannot be dealt through compromise. The wordings of the Code read as follows: “No comprise can be made on a criminal case in which the government of Nepal is plaintiff, on a case of bribery where it appears, from any plaintiff, defendant of any cases or any document submitted in evidence, that a government employee has taken or asked for bribery even though the suit of bribery has not been filed .On all cases other these if the litigants intend to enter into comprise at any stage prior to judgment ,they shall make an application setting down the points of their compromise to the office where the case has been filed read out the application to both parties and make the meaning and consequences thereof known to them clearly, and if, thereupon, both parties agree that whatever is set down in the application with their consent is true and correct, then the chief of the office shall draw up a deed shall be signed by the litigants, by himself or herself and also be stamped with the seal of the office .Where a comprise is so executed , no complaint that the party in question is not satisfied with the deed of compromise shall be entertained except a complaint that the other party has not complied with the deed of comprise.”*? 38 LOCAL SELF-GOVERNANCE ACT 1999, Chapter 5 of part 2 and Chapter 5 of part 3 >” General Codw 2020, Chapter on Court Proceedings, No. 182Vol. 4, at 98, (2012). Supreme Court Rules Mediation in formal justice system was transplanted by the Supreme Court since 2003 amendment of the District Court Rules, 1995. Since 2006, Court —referred mediation is extended in cases pending in the Appellate courts and the Supreme Court. The Supreme Court has issued Mediation Operational Guidelines for all the courts are almost the same. On the basis of the rules and guidelines, the courts are mediating the disputes and assisting the court. All the courts have mediation centers and roster of the mediators. The Supreme Court rule has also introduced five members committee chaired by the justice of Supreme Court, which is ssigned to make policies and overview mediation process. There shall be following members in the committee.” The Court Rules have defined the mediation, the mediator and the agency for meditation. In this way, the present Mediation Act, 2011 is the advancement of the rules and many of the provisions are also included in this Act. The rules have the provisions of: mediator’s roster, training for the mediator, code of the conduct of the mediator, fees of the mediator procedure of the meditation. Mediation Act, 2011 Nepal has enacted the Mediation Act on May 9, 2011 (2068 B.S). The act came into force considering the need to make a legal provision on the procedure of mediation to: settle disputes in a speedy and simple manner, to make the procedure less costly, for enhancing the general public to justice and to maintain the interest and convenience to general public. The Act composes 7 chapters and 48 sections. Chapter 1 envisions the preliminary, Chapter 2 deals with the settlement of disputes through mediation; 40 The Supreme Court Rules, Sec 13(d), 1992. Table No.1 Number of Mediation Centers Annexed to Courts No. of cases registered in the No. of successful cases No. of Unsuccessful Sub-judice | No. of center cases cases in mediators the center Transfe | Cases | Cases | Total | Cases Cases | Total | Cases | Cases rred till last | this no. of | till last | this cases | till last | this cases month | month | cases | month | month month | month from last month 88 815 87 902 161 27 188 530 70 600 | 114 175 Table No.2 Progress report of mediation for Asadh, 2075 B.S. in Kathmandu District Court Recent figures of mediation in Nepal, information from Kathmandu District Court Total number of cases registered in mediation center, Kathmandu District Court, Shrawan 2075 B.S. No. of cases this month(21) No. of cases transferred from previous month(98) S.N. No. of successful cases No. of Unsuccessful cases Till Asadh This month Till Asadh This month 0 19 0 44 Table: Figures of the month of Shrawan, 2075. No. of cases sub-judice in the No. of enlisted mediators mediation center 60 175 Table: Figures of the month of Shrawan UNIT FOUR FIELD VISIT AND ROLE PLAY Field visit During the course of our study we visited Kathmandu District Court in order to observe the process of mediation in action and to correspond such processes with the knowledge we had gained in the theoretical periods of Clinical Law I. We enriched a lot of experience in the course of our field visit. Starting with an introductory session, we met Mr. Madan Prasad Bhattarai, who gave us brief depiction of what mediation is and how it works. He explained, in a brief way, about the history of mediation, the procedures of mediation, and the nature of cases that can be resolved through the mediation. He explained us about the criminal proceedings being started in the custody of police, when the complaint paper of crime is filed before the police department. He explained us about ‘gola’ as well. He went on to say, “If training was to be provided then there was a 48 hours course available and after that again 3 days course was provided.” He explained about the procedures of mediation about how judge can refer the case to mediation and how other mediation was started. 15 days of time was given to resolve the dispute of the parties. But at such small period of time, it is not possible to resolve. So, 25/30 days of time can be considered. Pursuant to the briefing we were taken in an organized way to a court visit. The overwhelming part of the visit was to witness respected judge Respected Bhupadhoj Adhikari, and take pills of knowledge from him who has gained significant amount of experiences in the field of mediation. Our supervisor had introduced him as “one of the most successful mediators in resolving disputes”. As he went on to give us insights in regards to mediation we got to realize why he was actually introduced as “the most successful mediators” in his introduction. The tricks he gave regarding successful negotiation and skills for a good mediator are irreplaceable. In same vein, we were imparted with the information of how the mediation works inside the court, the overall process of mediation, how mediators are chosen (the court publishes a rooster consisting the name of mediators from which the parties may choose their desired mediator). We also got to know about the facts and figures of the success and failure rate of mediation and what happens after parties fail to reach an agreement and the procedures for the implementation of the mediation agreement. After all the information-gathering, we were divided into smaller groups to give a chance to observe a case-hearing that was going on. We were suggested to be peaceful, cooperative and not make noise. I along with my friends entered a court-room. Interestingly enough, the bench we were assigned to was hearing a criminal case. The prosecution has just started his pleading. It was a case of homicide divided in opinions of whether the deceased was killed or did a suicide. It was a thrilling experience to get to hear the details of the case and how the prosecution dealt with it. We, however, did not have enough time to hear the defendant’s part. Summing up the experience of the field visit, it was learning experience and I think there is no better way other than actually visiting the court where you get to observe the law in action. and again. She is full of life and want to enjoy it. She does not like it when someone else tries to control her way of life. The dispute arose between two sisters as to who should take care of mother in rather organized way as undoubtedly at her age, she requires lover and proper care. Analysis Prior to my very turn of playing the role of a mediator, I had observed the process two times and according to our due process, the observers were to give feed-back. As I was pointed to give the feed backs, I stood up with a lot of energy and criticized the way they had played the role. However, after the role play, I realized that being a mediator and sitting in the mediation panel is rather, “Easier said than done.” First and foremost, the difficulty I faced was to consult the disputant parties, as most of them are not a good listener and are there to speak only about their problems and are not concerned of what opposing party is to offer. The significant principle of the process of Mediation, i.e. neutrality and impartial towards both the parties was rather difficult to ensure during the process. Another challenge was the management of time, we spent most of our time trying to pacify the situation when disputants started arguing and we found ourselves incapable to manage the argument. Also, identification of issue was a major problem. We couldn’ t identify what the major issue was let alone change the party’s position into interest. Nonetheless, we did follow all the steps and did our level best. Our subject teacher was of great help through the entire process and our friends were also attentive enough. We got major feedbacks from the observers and ma’am who told us things we left unnoticed and things we should work on. In a nutshell, it was a valuable learning experience. UNIT FIVE CONCLUSION REMARKS Alternative Dispute Resolution process that have been developed today have greatly assisted in resolving dispute in a fast, flexible, cost effective manner. Mediation, having been one of the most important and primarily sought after ADR process, its importance is ever increasing. The disputes that can be solved through mediation, if they are resolved through mediation itself and not taken to the courts, then the case pressure in the courts can be tremendously be reduced, enabling the courts to focus of more serious and important cases. Mediation not only solves dispute but it also solves the problem. Through mediation the relationship between parties can also be improved. The feeling of enmity between the parties gets neutralized through the application of mediation process. This is not at all possible through litigation. Mediation enables the parties to make such agreement through dialogue and negotiation that cannot be obtained in a verdict of a court. Mediation being community centered approach, it greatly assists the community members to work together, in turn supporting in the establishment of social harmony. The existing lay a great emphasis in the issue relating to women’s role in mediation, this is to ensure women empowerment. The existing legal provisions do need improvement and amendments, but it is not a feat that can be reached overnight. The stake holders, state persons and advocates of mediation need to as: Ss the current scenario and implementation of mediation and find out existing flaws so that concerned authority can address the issue in an effective fashion. After the completion of the course of study of Clinical Law I, Alternative Dispute Resolution, I personally have acquired a lot of knowledge about Mediation and Arbitration. The concept and philosophy of mediation, the roles, responsibilities and qualities of mediator, process and procedure of mediation that I learnt during the study will indeed help me a lot in the days to come. Bibliography ACTS AND RULES The general code 2020 The local Self Governance act, 1999 Mediation act, 2011 (2068) Mediation Rules 2070 The Supreme Court rules, 2048(1992) The Appellate court rules, 2048 The District court rules, 2052 BOOKS 1. Richard Lewis, “Clinical Legal Education Revisited” Professor of Law, Cardiff University, Wales, United Kingdom Spencer, David & Brogan, Michael, Mediation Law and Practice (Cambridge University Press, 2006) John W. Cooley, The Mediator's Handbook: Advanced Practice Guide for Civil Litigation (NITA, 2006). DR. MADABHUSHI SRIDHAR, Alternative Dispute Resolution Negotiation And Mediation 254, (LexisNexis 2006). SHRIKANTA PAUDEL, “An Overview: Effectiveness And Challenges Of Court Referred Mediation”, 69 Kanoon, 16 (2006). JOURNALS 1. Shree Kanta Paudel, Access to Justice through ADR in Banking Disputes in Nepal, ADR COMMERCIAL LAW JOURNAL, Vol. 1, at 105, Corporate Governance Forum Nepal, Kathmandu, Nepal, (2012). ARTICLES 1. Mediation Training Manual of Supreme Court of India, The Mediation and Conciliation Project Committee, Supreme Court of India (2011)