Alternative Dispute Resolution: Mediation

(A Clinical Report)

Submitted To:
Nepal Law Campus
B.A.LL.B. Program, Faculty of Law
Tribhuvan University
Exhibition Road, Kathmandu
(In the Partial Fulfillment of Requirement for B.A.LL.B. Degree)

Submitted By:
B.A.LL.B. 5th semester
Section:
Roll no.:
Registration number:
January 27, 2023
 Recommendation Letter

It is to notify you that …………………….has prepared this Clinical Report on Alternative

Dispute Resolution: Mediation under my supervision for the partial fulfillment of the
requirement of fifth Semester of B.A.LL.B Program of Tribhuvan University. She has fulfilled
all the requirements and the formalities. I wish her a success in her further endeavors.
I hereby recommend the concerned authority to accept the report for its further evaluation.

Authenticated Date: ………………..

Mrs. Bishnu Maya Bhusal
Lecturer
Nepal Law Campus, T.U
 Preface
The study report submitted to B.A.LLB program, Nepal Law Campus, TU Faculty of Law in the
Partial Fulfillment of the Requirements for B.A.LLB degree under clinical law (ADR) has been
prepared based on the knowledge that I have earned during the 48 hours of study about
Alternative Dispute Resolution during the 5th Semester of my BA LLB degree. The report lays
emphasis most specifically on Mediation as a kind of ADR process. The information used in the
following report has been derived from the lectures of our teacher who taught us about
mediation. This report was prepared with the primary objective of illustration of knowledge
gained in clinical law class.

Harvard Bluebook 19th edition, citation format has been followed throughout the report.

The report has been prepared based on the guidelines that were provided to us from the campus
administration.

……………………..
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Clinical teacher "Mrs. Bishnu Maya
Bhusal" for her able guidance and support in completing my report.

I would also like to thank to all the authors and learned personalities whose writings have been
used for this study. I would like to extend my gratitude to the campus chief Mr.D.N Parajuli ;
Nepal Law Campus, Tribhuwan University, for granting me the sincere opportunity and
environment to write this report.

I would also like to convey my sincere gratitude to my seniors for providing constant
encouragement and support during the entire process of preparing this paper.

At last, I would like to express my heartfelt gratitude to all my friends for providing me with
such helpful environment and an overall support for the completion of this report.

…………………………………..

5th Semester, BALLB

TABLE OF ABBREVIATIONS

 AAA - American Arbitration Association

 ADR - Alternative Dispute Resolution
 BATNA - Best Alternative to a Negotiated Agreement
 CLE - Clinical Legal Education
 E.g. – Example
 Etc. - Et cetera
 Med-Arb - Mediation-arbitration
 UNICTRAL - United Nations Conference on International Trade Law
 WATNA - Worst Alternative to a Negotiated Agreement
 WIPO - World Intellectual Property Organization
 ZOPA - Zone of Possible Agreement
 NGO – Non-Governmental Organization
 VDC - Village Development Committee
 CLE - Clinical legal education
 CMS - Community Mediators Society
 TABLE OF CONTENT
Recommendation

Preface

Acknowledgement

List of Abbreviation

Chapter One:

Introduction
1.1) Background of study
1.2) Statement of Problem
1.3) Objective of Study
1.4) Scope of Study
1.5) Importance of Study
1.6) Limitation of Study
1.7) Methodology
1.8) Literature Review
1.9) Organization of Study

Chapter Two:
Conceptual Framework of Alternative Dispute Resolution- ADR
2.1) Concept of Alternative Dispute Resolution
2.2) History of Alternative Dispute Resolution
2.3) Types of Alternative Dispute Resolution
2.4) Characteristics of Alternative Dispute Resolution
2.5) Importance of Alternative Dispute Resolution
2.6) Rational of Alternative Dispute Resolution
2.7) Limitation of Alternative Dispute Resolution

Chapter Three:
An Introduction to Mediation
3.1) Concept of Mediation
3.2) Characteristics of Mediation

3.3) History of Mediation

3.4) Types of Mediation

3.5) Advantages of Mediation

3.6) Disadvantages of Mediation

Chapter Four:

Mediation Process
4.1) Proceedings of Mediation

4.2) Stages of Mediation

Chapter Five:

Mediation Practice in Nepal

5.1) History of Mediation

5.2) Nepalese Law on Mediation

5.3) Types of Mediation

5.4) Enforcement of Mediation

5.5) Challenges of Mediation

Chapter Six:

Findings, Recommendation and Conclusion

6.1) Findings

6.2) Recommendations
6.3) Conclusion

Bibliography/ References
CHAPTER I: INTRODUCTION
1.1 Background of the study
Clinical legal education is a progressive educational ideology and pedagogy that is most
commonly used in university programs. A learning environment in which students identify,
research, and apply knowledge in an environment that, at least in part, replicates the real world.

Clinical Legal Education is a broad term that refers to education that focuses on teaching
students how the law works in practice.

This can be accomplished through the completion of real or realistic simulated case work. Legal
education clinics, if properly directed, may aid students in gaining knowledge.

Richard Lewis, for example, has defined Clinical legal education is essentially a multi-
disciplined, multi-purpose education that can cultivate the human resources and ideals required
to strengthen the legal profession.

1.2 Statement of Problem

Mediation is a process in which disputing parties, with the help of a neutral third party, identify
the disputed issues, develop options, and consider alternatives in order to reach an agreement.
The context in which mediation occurs has a significant impact on its growth and application.

Mediation is an art form that combines intuition, subtlety, and vision, but it is also a skill with
transferrable tools, measurable tasks, and management challenges.
In terms of process, the debate over the practice of mediation versus the theory of process
continues, with the latter being more visible in court-related mediation where lawyers or judges
play a role. Another critical question is whether mediation's policy goals of improving access to
justice, reducing court waiting lists, and increasing consumer satisfaction with the legal system
have been and can be met.

The researcher has formulated the following statement of problem while conducting this
research.

1 What are the existing legal provision relating to mediation in Nepal?

2 Are there any importance of mediation in Nepalese justice system for dispensing the
effective justice in Nepal?

1.3 Objectives of study

The study's objectives serve as guidance for how it should be carried out in a methodical way.
Any task that needs to be completed methodically must have a defined set of goals. Some of the
study's goals include:

1. To review Nepal's current mediation-related legal guidelines;

2. To understand the significance of mediation for the efficient administration of justice in

Nepal;

1.4 Scopes of study

The inclusion of clinical legal education in the BALLB 5th semester curriculum has broadened
the concept, principles, practices, and understanding of various methods of dispute resolution,
luring many of us into a lucrative career opportunity in the concerned field.

The theoretical aspect, backed up by practical experiences, has increased the effectiveness and
impact on the students. We have several disagreements in society, and we also have
disagreements and conflicts of ideas and interests with others in our daily lives. So, the lesson
I've learned, as well as the techniques and skills of mediation, will undoubtedly come in handy in
various aspects of my daily life where I can help to resolve such issues.

This course taught us about the acronyms ZOPA, BATNA, and WATNA, which are frequently
used in the field of ADR. We learned about the ADR processes used in other countries such as
Sri Lanka, Japan, India, and the United States, and how these mechanisms are used to resolve
disputes there. We also learned about the training required to be a good mediator, as well as the
skills and techniques that they employ in any resolution process.

We learned about the fundamental theoretical and philosophical aspects of alternative dispute
resolution, the need for such options, and their evolution and adaptability within the Nepalese
judicial system. This course essentially taught students how to use their knowledge of ADR to
effectively resolve any dispute.

This study is basically related to the issues and practices of mediation in the field of the court
referred as well as community-based mediation, especially in the context of Nepal. So, the report
will be fruitful to promote knowledge about mediation practices. It will also be helpful to
concern authority especially to the GON and academicians, lawyers, politicians ,and policy
maker as well as those people who are kindly interested on these particular issues.

1.5 Importance of Study

Although the research accomplished its goals, some difficulties and limitations were
encountered. The limitations should be considered because they will undoubtedly affect the
findings of this report. It is the researcher's responsibility to use available approaches in order to
produce a high-quality study. Those constraints can be reduced if there is enough manpower,
financial support, and time. As a result, the study's limitations would be based primarily on
existing mediation law.

1.6 Limitations of study

Although the research accomplished its goals, some difficulties and limitations were
encountered. The limitations should be considered because they will undoubtedly affect the
findings of this report. It is the researcher's responsibility to use available approaches in order to
produce a high-quality study. Those constraints can be reduced if there is enough manpower,
financial support, and time. As a result, the study's limitations would be based primarily on
existing mediation law.

1.7 Methodology:
This study employs both doctrinal and descriptive research methods. To describe the legal and
judicial practice and community-based mediation in Nepalese perspective, a descriptive research
design is used. In this study, the doctrinal research method was also used to clarify the theoretical
aspect of mediation practices and their impact on Nepalese society in Nepal. This work is the
culmination of 15 months of research. The primary data was gathered from the constitution, acts,
and regulations, and the secondary data was gathered from published and unpublished literature
such as books, theses, articles, and websites related to this study, as well as information from a
library study. However, this report is based on ADR and mediation as a method of ADR in
Nepal.

1.8 Literature Review

The fundamental introduction to mediation and its value in resolving disputes have been
attempted to be covered in this paper. There was no complete literature on the subject topic that
the researcher could uncover when compiling this dissertation. In Nepal, there is a dearth of
writings about mediation. Research papers on mediation from a Nepalese viewpoint are also
scarce to nonexistent.

The book Mediation and Dispute Resolution In Nepal, written by Mukti Rijal shows the
evolution and practice of Mediation in Nepal. It discusses on the practices on Community
Mediation along with overview on International Mediation Law as well.

The book, ‘Mediation Process Practical Strategies For Resolving Conflict’ ( 4 th edition ) by
Christopher W. Moore provides the comprehensive concepts and process on Mediation. It
discusses on the practice of mediation along with mediation roles, functions, approaches and
procedures.
Likewise, Nepal Mediation Journal by Mediation Council, 2018 mentioned history and dispute
settlement by local bodies in Nepal, concept of arbitration and mediation and dispute settlement
process through mediation – arbitration in Nepal.
1.9 Organization of study

Six chapters make up the organization of this study. The study is introduced in the first chapter,
the conceptual framework of ADR is covered in the second chapter, the concept of mediation is
covered in the third chapter, the mediation process is covered in the fourth chapter, the mediation
practice in Nepal is covered in the fifth chapter, and the findings, recommendations, and
conclusion are covered in the sixth chapter.

CHAPTER 2: CONCEPTUAL FRAMEWORK OF

ALTERNATIVE DISPUTE RESOLUTION
GENERAL BACKGROUND

Dispute resolution is a concept that refers to a number of processes that can be used to resolve a
dispute or claim. Alternative Dispute Resolution known as ADR short is a process of settling
disputes outside of the courtroom without resorting to adversarial processes and strategy. This
process can be used to resolve any type of dispute including family, neighborhood, employment,
business, housing, personal injury, and consumer, political and environmental disputes. The most
common types of ADR are: Negotiation, Arbitration, Mediation and, Conciliation.ADR is also
described as a kind of mid-point between the formality and rigidity of the adversarial court
system and the flexibility and informality of negotiation.

In recent years, the 'A' in ADR has been reviewed to mean appropriate which softened the
perception that ADR processes are somehow inferior as they are alternative. The reality is that
ADR provides a board range of dispute resolution services which are often the primary resource
for dispute resolution with litigation being a last resort.For example in the US a 2011 survey of
Fortune 1000 conducted by Cornell university and the Strauss institute evidences a shift in
corporate orientation from litigation towards ADR to save money,time and to exert control over
dispute resolution process.In fact, 98% of respondents in this landmark survey indicated that
their company had used mediation at least once in the past three years.In future given how
commonplace and well integrated ADR process are in the
court,community,employment,academic,and commercial sector, it is anticipated that we will
loose the A in ADR and simply refer to our fields work collectively as dispute resolution
services.

2.1 CONCEPT OF ALTERNATIVE DISPUTE RESOLUTION

The very concept of ADR is emerged due to the dissatisfaction of the parties in court litigation.
The ADR has really addressed the very interest and problems of the parties. There is always
problem in one side and the dispute in another. One of the hidden demerits of the court litigation
is that it never inter into the real problem of the disputing parties. The court always gives the
verdict in the dispute but it does not settle the real problem of the parties. That is why, the
concept of ADR is emerged seeking to the satisfaction on the problem solution. And it is fact
that, the mediation is such a process which really solves the problem. When the real problem is
solved then the dispute comes to an end by agreement.

In the late 1980s and early 1990s, many people became increasingly concerned that the
traditional method of resolving legal disputes in the United States, through conventional
litigation, had become too expensive, too slow, and too cumbersome for many civil lawsuits
(cases between private parties). This concern led to the growing use of ways other than litigation
to resolve disputes. These other methods are commonly known collectively as Alternative
Dispute Resolution (ADR).

Although certain ADR techniques are well established and frequently used for example,
mediation and arbitration-alternative dispute resolution has no fixed definition. The term
alternative dispute resolution includes a wide range of processes, many with little in common
except that each is an alternative to full-blown litigation. Litigants, lawyers, and judges are
constantly adapting existing ADR processes or devising new ones to meet the unique needs of
their legal disputes. The definition of alternative dispute resolution is constantly expanding to
include new, useful as well as very acceptable techniques.

There is no single perception while defining the ADR but the meaning is similar form all aspects
that it is always act outside of the regular court. It is the alternative of the court procedure that
provides justice to the parties without going to the court.

An ‘ADR Neutral’ is an unbiased, impartial, and third party not connected with the dispute,
which includes an Arbitrator, Mediator, Conciliator, Facilitator, Evaluator or any other person
who helps the parties to settle their conflicts by (ADR)1

ADR processes are consensual and voluntary processes, which are chosen by the parties to the
dispute. These processes are expeditious because ADR avoids those components of traditional

1
http://law.jrank.org/pages/4278/Alternative-Dispute-Resolution.html
litigation that prolonged and delay resolution of dispute. ADR process is flexible which is
handled and resolved through an ADR agreement. The parties choose a particular ADR process,
outline the specific steps of the process, and establish time limits. It is a non judicial process in
which decision is made by the parties themselves. In ADR, the parties control the process and
outcome.

ADR proceedings are flexible. They can be conducted in any manner to which the parties agree.
It may be as casual as a discussion around a conference table or structured as a private court trial.
Also unlike the courts, the parties have the freedom to choose the applicable law, a neutral third
party to act as Arbitrator/Conciliator in their dispute, on such days and places convenient to them
and also fix the fees payable to the third party. ADR is a private process and it offers
confidentiality, which is generally not available in court proceedings. While a court procedure
results in a win or lose situation for the disputants, in an ADR processes such as Mediation or
conciliation, it is a win-win situation for the parties because the solution to dispute emerges with
the consent of the parties. ADR proceedings save considerable time and money. ADR has
distinct advantages because it involves increased respect and trust between the parties, more
creative and satisfying solutions, greater compliance with the settlement, reduced cost and
emotional energy and faster resolution of dispute. It improves communication and relationships
between the parties.

According to the Black's Law Dictionary, ADR is "a procedure for settling dispute by means
other than litigation, such as arbitration and mediation." "Modern systems of alternative dispute
resolution, commonly referred to as ADR, are designed to help parties solve disputes efficiently
without resort to formal litigation and with a minimum of judicial interference."2

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.3The broad inclusiveness of ADR as dispute resolution can further be explained by the

2
Hilmond Investments v CIBC 1996, 135 DLR (4th) 471 (1996, Ontario Court of Appeal).
3
PROF. SAHA, TUSHARKANTI.,LEGAL METHODS, LEGAL SYSTEMS & RESEARCH., New Delhi:
Universal Law Publishing, 2010.
preference for confidentiality, and desire of parties to have greater control over the selection of
the individual or individuals who will decide their dispute.4

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 Arbitration Act 2055,
Mediation Act 2068, District Court Rule 2075, High Court Rule 2073 and Supreme Court Rule
2074, Local Government Operation Act 2074, etc.

2.2 History of ADR

Ancient Greek roots of Arbitration

In the western world, the story of ADR can be traced back to the ancient Greeks. One famous
story of Arbitration comes down through mythology. The goddesses Juno, Athena, and
Aphrodite were squabbling over who was the most beautiful and called on Paris, the royal
shepherd, to decide. Paris, it seems, was not above accepting a bribe from Aphrodite, who thus
won the contest. But Juno, wife and sister of Jupiter, was not one to forgive and forget. She was
so furious at Paris that she unleashed a host of plagues on Troy. Thus, one of the classics of
western literature, Virgil’s The Aeneid, can be read as a long mediation on the evils wrought by
an arbitration gone awry.5

Arbitration was not simply a matter of mythology to the ancient Greeks. As Athenian courts
became crowded, the city-state instituted the position of public arbitrator sometime around 400
B.C. (Harrell, 1936). According to Aristotle, all men served this function during their sixtieth
year, hearing all the matter of civil cases in which the disputant did not feel the need to go before
more formal, and slow, court system. The decision to take a case before an arbitrator was

4
TotaroGianna, “Avoid court at all costs” THE AUSTRALIAN FINANCIAL REVIEW, (Nov 14,
2008).
5
JEROME T. BARRETT AND JOSHEP BARRETT, HISTORY OF ADR, 2004
voluntary, but the choice of being an arbitrator was required to do so; if he refused, he would
lose his civil rights (Harrell,1936).

The procedures set up by the Greeks were surprisingly formal. The arbitrator for the given case
was chosen by lottery. His first duty was to attempt to resolve the matter amicably. Both
Aristotle (384-322 B.C.) and Cicero(106-43 B.C.) commented favorably on arbitration in words
that certainly could be used to describe modern arbitration. They made clear that arbitration was
an alternative to the courts. Aristotle said arbitration was introduced to “give equity its due
weight, making possible a larger assessment of fairness” (Aristotle). Cicero said a trial is “exact
clear cut and explicit, whereas arbitration is mild and moderate” (Cicero). He added that a person
going to court expects to win or lose; a person going to arbitration expects not to get everything
but not to lose everything either.

Other Early Uses of Arbitration

The ancient Greeks were not alone in using arbitration at an early date. Other example around
the world includes the following:

India used a system of arbitration, Panchayat, beginning twenty five hundred years ago. The
arbitrator, called a Panch, was given such high status that his decisions were irreversible. All
types of cases could be subject to arbitration, including criminal matters. This practice of
arbitration was so strong that it continued even during the eight hundred years of Muslim rule in
India.6

Arbitration was also a feature of the old Irish Brehon law system, a body of indigenous law that
existed in Ireland from the Celtic settlement before Christ. In early Irish law, a brithem, who had
trained in law but had not been appointed by the king as the official judge, could work as an
arbitrator. The law established the arbitrators pay at one-twelfth of the sum at issue.

History of ADR in Nepal

The history of laws and experiences of arbitration has not so long in context of Nepal. The
formal legal history of arbitration law in Nepal dates back to the year 1957 AD. When the
amendment made in the Act inserted a provision of arbitration in the case where the development
6
JEROME T. BARRETT AND JOSHEP BARRETT, HISTORY OF ADR, 2004
board is involved with. After introducing arbitration by giving room in the act, a trend has been
established to recognize arbitration as a means of settling disputes in other act subsequently.
Such acts binding the system for settling the disputes via arbitration are Nepal Airlines Act, 1962
AD, Commercial Act, 1974 AD and so on. Before promulgating the special law relating to
arbitration. Nepal has been states the scattered legal provisions in relation to the settlements of
disputes through method of ADR, i.e.; arbitration and mediation in several Acts.7

The Nepalese Arbitration Law acquired the precise and formal recognition of law makers in
1981 AD through the enactment of Arbitration Act, 1981 AD. It was the act which was wholly
concentrated with the arbitration. After being existed for approximately 18 years, now the Act
has been replaced by Arbitration Act, 1999 AD, Which is the prevailing law of Nepal to this
effect. The Act has been brought in practice since 15th April 1999 AD.8

2.3 TYPES OF ALTERNATIVE DISPUTE RESOLUTION

a) Negotiation

Negotiation is most common among the dispute resolution processes. People negotiate every day
without knowing what they are doing. Basically, negotiation is a 'bargaining process' between the
parties. In negotiation, parties discuss their matters of conflict with a view to narrow down
differences and reaching an agreement.

Mainly, there are two types of negotiation; positional and interest-based. Positional negotiation is
'Win-Lose' result oriented. The purpose of this approach is: to win, to increase gain, to refuse
reciprocity, to give as little as possible to the other side and to settle the dispute slightly below
the primary demand. On the contrary, interest-based approach is directed to achieve a 'Win-Win'
result. Specific forms of negotiation are used in many situations: International affairs, the legal
system, government, industrial disputes or domestic relationships as examples. However, general
negotiation skills can be learned and applied in a wide range of activities. Negotiation skills can
be of great benefit in resolving any differences that arise between you and others.

7
BHADARI,D.R.(2016) BUSINESS LAW, ABC BOOKS PUBLISHERS AND DISTRIBUTORS HOUSE
PVT.LTD, KATHMANDU
8
ARBITRATION ACT, 1999
In order to achieve a desirable outcome, it may be useful to follow a structured approach to
negotiation. For example, in a work situation a meeting may need to be arranged in which all
parties involved can come together.

b) ARBITRATION

'Arbitration means "settling a dispute between parties by referring it to an arbitrator instead of

going to a court." Arbitration is a privatized system of dispute resolution.9 Arbitration in the legal
sense is done after conflicting parties refer the issue to one or more persons with or without an
umpire and the award is enforceable by the sovereign power.10 Nepalese Arbitration Act, 1999
defines the term agreement in sec 2(a) of the Act. It defines the term agreement as "a written
agreement reached between parties by arbitration of a dispute which has arisen at that time or
which may arise in future in respect of a defined-legal relationship, whether contractual or not." 11

Arbitration is essentially a consensual process, the parties in dispute agreeing to refer that dispute
to an independent third party for adjudication on the basis of evidence and arguments to be
represented to him and that adjudication shall be binding upon them. The arbitrator's decision
thus acquires its binding force from the parties' agreement. Arbitration is regarded as way more
advantageous than that of the litigation. As professor Schmitt Hoff observed: In International
disputes the parties are sometimes disinclined to go to the national courts. They prefer their
dispute to be settled by persons with an international outlook.12 If the dispute cannot be settled in
the manner as referred to in conciliation, it shall be settled by the Arbitration Rules of the
UNICITRAL.13 Arbitration can be called as a referral of matters of difference/dispute between
the parties to an arbitrator. Here, the dispute is referred to one or more persons other than the
court. The arbitration tribunal should act judicially in rendering the decisions.

c) CONCILIATION

9
Encyclopedia Britannica 110, (Encyclopedia Britannica INC 1968).
10
S.B. MALIK, PRINCIPLE OF DIGEST OF ARBITRATION LAW 1, (Allahabad: University Book
Agency) (1998).
11
Nepalese Arbitration Act, Sec.2 (1) (1999).
12
SCHMITTOFF, WHY ARBITRATION IS THE FAVORED METHOD OF DISPUTE SETTLEMENT,
(Financial Times) (1985).
13
Nepalese Foreign investment and Technology Transfer Act, sec.7 (1) (1992).
Conciliation is the oldest and most traditional method of settling disputes. Conciliation is a very
much popular, useful and less burdensome alternative to court adjudication with intent to search
for a prompt, more effective and participatory procedure. This has specific relevance in corporate
issues. It is the process of adjusting or settling disputes in a friendly manner through extra-
judicial means. It means bringing two opposing sides together to reach a compromise in an
attempt to avoid taking a case to trial.

Conciliation is a process of dispute resolution before the arbitration process. Under this process,
a third party selected by the disputant renders a decision after hearing and collecting evidence
from both parties. Hence, conciliation is a process in which parties appoint a conciliator and the
conciliator formulates a possible settlement and submits it to the parties for their observation.
Conciliation is the most important part of ADR in settling both national and international
disputes. Its popularity has increased with the liberalization of economics, globalization and
privatization. The United Nations Commission for International Trade Law (UNICITRAL)
adopted a set of conciliation Rules in 1980. The UN General Assembly has recommended using
these rules in international commercial relations so as to seek amicable settlement of disputes.

We have no separate Conciliation Act despite the fact that we have various legal provisions in its
scattered form such as the Nepalese Labor Act, 1992. The "Foreign Investment and Technology
Transfer Act (FITTA), 1992" has some of the most important provisions on commercial disputes.

d) MEDIATION

The term Mediation is derived from the Latin term 'Medious' which was later called as 'Mediare'
which later form into the English term 'Mediate' which means "In the middle". In Roman
History, Mediator was addressed by various terms like: Internuncios, Intercessor, Interpolator,
Interlocutor, Medium, Philantropus, Conciliator, Interpres etc. Later, it was called as "Mediator".

Mediation is the most popular form of dispute resolution around the world. According to Claudia
Kappacher, in China around 90% of disputes are resolved through mediation. It is cheaper than
others. Biggest American Companies like TOYOTA and MOTOROLA even follow the process
of mediation for resolving disputes in order to save unnecessary expenses of litigation.

It can be broadly defined as the neutral third party assisted dispute resolution process in which
the conflicting parties are supreme. The third party or mediators have only those powers that the
parties confer on them. They do not advise or dictate their views to the parties. Their role is to
act as a catalyst to improve the process of decision making and to assist the parties to obtain an
agreed outcome. Mediation is a flexible process however some "Standard mediation Process" has
been developed. In the pre-mediation step all preparatory activities between the mediator and the
parties in conflict are managed. This primary store also greatly differs in accordance with the
nature of the dispute and the scheme of mediation.

After the Pre-mediation stage, the actual mediation process begins. There are four sub-stages to
be followed in this stage. They are: Introduction of the mediator, understanding of the matters
involved in the conflict, identification of issues and finding alternatives for settlement and
agreement. In the meeting, the mediator firstly explains the method to be followed during the
whole process. He may also explain his facilitative and neutral role and some basic regulatory
rules for the meeting. After that, the parties present their case to each other. During the case
presentation, interruption is not allowed but the mediator may question and clarify what the
parties want to say exactly. In the next step, agendas of discussion are prepared in order of
importance. Through the decision, reciprocal interests are identified and options of solution
produced. Lastly, the parties have to think about the best alternative to a negotiated agreement.

Besides the above mentioned two main stages of mediation, a third stage can also be added, i.e.
'post mediation activities'. It includes Ratification and review, official sanction, referrals and
reporting, mediator debriefing and other follow-up activities should be conducted in this stage. 14
Mediation doesn’t involve decision making by the neutral third party. Mediation is generally a
short-term, structured, task-oriented, and "hands-on" process.15

e) Med-Arb

Med-arb, a combination of mediation and arbitration is a short-hand reference to the mediation-

arbitration procedure. In med-arb procedure, the parties to a dispute mutually agree to mediate
the dispute with an undertaking that, if the issues are not settled through the mediation then they
will resolve the dispute by arbitration. Med-arb is a mixture of mediation and arbitration that
pulls from the benefits of the two. In Med-Arb, the parties try to resolve their differences through

14
Ramesh Karkee ,Alternative Dispute Resolution (ADR): An Overview, at 36-42.
15
What is mediation, (Nov 15,2018, 10:00PM), http://adr.findlaw.com/mediation.
mediation. However, if mediation fails to resolve some or all areas of the dispute, the remaining
issues are automatically submitted to binding arbitration.

f) Early Neutral Evaluation

An early neutral evaluation (ENE) is used when one or both parties to a dispute seek the advice
of an experienced individual, usually an attorney, concerning the strength of their cases. An
objective evaluation by a knowledgeable outsider can at least provide them with more insight
into their cases strengths and weaknesses. Of course, the success of this technique depends upon
the parties' faith in the fairness and objectivity of the neutral third-party and their willingness to
compromise.

2.4 CHARACTERISTICS OF ADR

1. Goals

There must be a shared understanding of the goals of the ADR program so that there can also be
a shared understanding about whether it is succeeding.

The court must be clear about its goals for the ADR program

Those goals must be shared with stakeholders

2. Principles

The ADR program must operate on a common set of foundational principles, including ethics as
appropriate for the ADR process being provided.

Confidentiality (in mediation)

Fairness of process

Fairness of outcomes

Procedural justice

Accessibility

Neutral quality

Self-determination (in mediation)

Timeliness
3. Accessibility

Everyone – including litigants and lawyers – must be able to readily access the ADR program.

Parties who are unable to pay for ADR are afforded the opportunity to use ADR

Parties who are representing themselves are able to participate fully in ADR

Parties with disabilities are able to participate fully in ADR

4. Process Quality

Notwithstanding the importance of other characteristics, the true quality of a court ADR
program boils down to what happens during each ADR session.

Whichever ADR process is being used, it adheres to the foundational principles of that process

Participants have an experience of procedural justice when engaging in the ADR process:

They feel they had a voice in the process (e.g., had a chance to talk, felt they were heard)

They feel they were respected in the process

They feel the process was fair to them

5. Program Support

The ADR program will only succeed if it receives steady support from a number of sources.

1. Stakeholders understand and support the ADR program

 Judges
 Litigants
 Court staff
 Neutrals

2. The program has sufficient, stable financial support

6. Neutrals

Neutrals are the face of the program to litigants and lawyers, so they must provide quality
services.

a) Neutrals share a common understanding of the service they are to provide

b) Neutrals provide services in the manner expected by the program and its stakeholders
c) Neutrals operate in an ethical manner
 d) Neutrals have the necessary skills and knowledge
e) Neutrals are selected for the roster fairly
f) Neutrals are appointed to cases in a fair manner
g) Neutrals receive appropriate initial and ongoing training
h) Neutrals provide a sufficiently uniform version of the ADR process
i) Parties have a way to lodge complaints about neutrals
j) Neutrals are treated fairly when a complaint against them is made
k) Neutrals are compensated fairly (which does not preclude volunteer mediators)
l) Neutrals are assessed fairly:
a) Participant surveys
b) Peer review

7. Lawyers

Lawyers must support, or at the very least accept, the ADR program.

1. Lawyers are often repeat users of the ADR program, therefore their support is especially
important
2. This applies equally to those who typically represent one side or the other, e.g., landlords’
lawyers and tenants’ lawyers.
3. Lawyers should:
 Find the program useful
 Be educated about the program
 Fulfill their responsibilities in the program

8. Program Safety

ADR processes must be safe, both literally and figuratively.

1) Participants, neutrals and staff are all safe when participating in ADR and otherwise
interacting with the ADR program

See Association for Conflict Resolution ADR Safety Planning: Recommended Guidance

2) Participants are screened prior to ADR, when appropriate, to identify intimate partner
violence and other potential barriers to participation

9. Data Collection and Dissemination

Reliable data must be collected regularly and shared appropriately, or it won’t be available when
it is time to sustain or improve the ADR program.
 1) Data is collected regularly and includes both quantitative and qualitative information
(e.g., statistics and success stories)
2) Changes in the program are tracked and acted on, e.g., changes in:
 The number of cases being sent to ADR
 The number of agreements being reached
 The number of mediators signing up to mediate
 The number of parties showing up for ADR sessions
3) Data is turned into reports that can be readily digested
 Easy to read
 No use of insider language or acronyms
 Fitting use of charts and other visuals
4) Reports are adapted to their particular audience and disseminated appropriately, typically
as follows:
 Judges and court administrators with direct responsibility get the most detailed reports
 Those higher up in the court system get summaries with explanations
 Funders’ reports depend on what the funder requires. They may also get some anecdotes
about how parties are experiencing the program.
5) Reports include recommendations for action when appropriate
6) 6) The program is evaluated near the end of the first year, after a substantial period of
time, or when there has been a major change in the program or the context in which
the program operates

10. Program Promotion

Reminding stakeholders of the value of the ADR program will help maintain its support.

1) Brochures are made available in courtrooms and other locations as needed

o Brochures are only produced if they will serve a particular purpose, such as giving
parties the number they need to call to schedule a mediation
o If brochures are targeted to self-represented litigants, they must be in easy-to-
understand language

2) News about the program is publicized via:

o Local radio, TV, newspaper, news websites

o Court newsletter
o Bar association newsletter

3) Program is featured on appropriate websites.

o Information about the ADR program can be readily found on the court’s site
 o If the program maintains its own site, instead of appearing as part of the court’s
site, it must be easy to find and navigate and kept up to date

4) As members of stakeholder groups change, the new individuals are familiarized with the
program.

o Judges are educated on how it works, ethical limitations, what to expect

o Lawyers, e.g., child protection attorneys, assigned to courtrooms are trained in
how to use the program
o Staff at funders are educated about the program’s benefits and history
o Court staff are educated about the program’s benefits and how it fits into court
processes

11. Program Administration

Someone wakes up every morning with the feeling that it is their job to do everything on this list
to ensure the quality and continuity of the ADR program.

1) Individuals with power over the program, e.g., funding or case referrals, are kept
informed about the program
2) The ADR program operates in accordance with applicable laws, court procedures and
rules
3) The program functions efficiently and effectively, e.g.:
 Cases are referred to ADR in a consistent manner
 Cases are scheduled promptly
 Reports are provided to court on time
 The benefits provided by the ADR program are reasonable in relationship to the costs of
the program
 Changes in the program are tracked and potential responses suggested when needed16

2.5 Importance of ADR

ADR has following importance's17:

 Save a lot of time by allowing resolution in weeks or months, compared to court, which
can take years.
 Save a lot of money, including fees for lawyers and experts, and work time lost.
 Put the parties in control (instead of their lawyers or the court) by giving them an
opportunity to tell their side of the story and have a say in the final decision.

16
ARTICLE BY SUSAN YATES
17
Available athttp://www.localcourt.justice.nsw.gov.au/Pages/adr/benefits_adr.aspx
  Focus on the issues that are important to the people in dispute instead of just their legal
rights and obligations
 Help the people involved come up with flexible and creative options by exploring what
each of them wants to achieve and why.
 Preserve relationships by helping people co-operate instead of creating one winner and
one loser.
 Produce good results, for example settlement rates of up to 85 per cent.
 Reduce stress from court appearances, time and cost.
 Keep private disputes private - only people who are invited can attend an ADR session,
unlike court, where the proceedings are usually on the public record and others, including
the media, can attend.
 Lead to more flexible remedies than court, for example by making agreements that a
court could not enforce or order (for example a change in the policy or practice of a
business).
 Be satisfying to the participants, who often report a high degree of satisfaction with ADR
processes.
 Give more people access to justice, because people who cannot afford court or legal fees
can still access a dispute resolution mechanism.

Among different measures of ADR, this report is concerned with the nature and processes of
mediation in the context of mediation law.

2.6 RATIONALE FOR ADR

Settling private disputes through the courts can be a cumbersome, lengthy and expensive process
for litigants. For these reasons, various forms of ADR have assumed increasing importance in
recent years. Proponents of ADR cite many considerations in its favour for example.18

Quicker resolution of disputes

Lower costs in time, money and aggravation for the parties

Reduced strain on an overloaded court system

Ability to use decision makers with specialized expertise

Flexible compromise decisions that promote and reflect consensus between parties.

18
Jane P. Mallor, BUSINESS LAW AND THE REGULATORY ENVIRONMENT, 32 (2001)
Both parties have autonomy to select the neutral third party except negotiation and court annexed
arbitration19 or

Hidden interests are explored and conflicts are settled permanently.

Similarly, Stephen B. Goldberg and others have enumerated following reasons for the
justification of ADR process.20

To lower court loads and expenses

To reduce parties’ expenses and time

To provide speedy settlement of those disputes that were disruptive of the community or the
lives of the parties’ families

To improve public satisfaction with the justice system

To encourage resolution that were sited to the parties’ needs

To increase voluntary compliance with reductions

To restore the influence of neighbourhood and community value and the cohesiveness of
communities

To provide accessible forums to people with disputer or

To teach the public to try more effective processes than violence or litigation for settling
disputes.

ADR is two types : firstly, methods for resolving outside of the official judicial mechanisms and
secondly, informal methods attached to official judicial mechanisms.

2.7 LIMITATIONS OF ADR

Of course, together with many advantages, ADR has been also criticized for some disadvantages.
In order to get the out most advantages of the ADR, everybody needs to know the pitfalls of
ADR so as to use court litigation if the latter would bring best result than the former in specific
case.
19
Uday Nepali Shrestha, “Alternative Dispute Resolution”, Good Governance, Fair
Administration of Justice and Capacity Development Programme Report, Judicial Council 127-
129 (2003)
20
Stephenn B. Goldberg et al., Dispute Resolution : Mediation and other Process, 8(2d ed. 1992)
A) In balance of power

The benefit of voluntary negotiating agreement may be undermined where there is a serious
imbalance of power between the parties –in effect , one party is acting less voluntarily than the
other.

B) Lack of legal expertise

Where a dispute hinges a difficult point of law, an arbitrator may not have the required legal
expertise to judge.

C) No system of precedent

There is no doctrine of precedent, and each case is judge on its merits, providing no real
guidelines for future cases.

D) Enforcement

The decision not made by the court may be difficult to enforcement. And the parties can evade
from fulfilling their obligations.

Chapter Three
An Introduction to Mediation
3.1. Concept of Mediation

Mediation is a structured, interactive process where an impartial third party neutral assists
disputing parties in resolving conflict through the use of specialized communication and
negotiation techniques. It is non-binding procedure completely dependent upon the willingness
and determination of disputing parties. In fact, when negotiations between the parties have failed
and communication lines between two sides are broken, there is space for third party to step in.
The third party may be a volunteer in the process or a person approached by both parties to take
up the role. Mediators guide and control the mediation process, but must avoid trying to direct
the content of discussion.21

The term “Mediate” is derived from the Latin word “Mediate” which means “to be in the
middle”. Certainly, mediator finds himself in the middle of a dispute. The major purpose of
mediation is to assist people in reaching a voluntary resolution of a dispute or conflict.

Mediation is itself a multi-tiered process whereby first the parties must agree to mediate, after
which negotiations are induced and the mediator assists the parties in reaching a mutually
agreeable solution. This process becomes more important in cases where the parties are under
time constraint, or privacy is of essence or the parties share a personal and emotional bond where
the regular prolonged judicial justice systems would prove fatal to the parties’ relationship.

Similarly, different scholars have defined mediation in their own ways and terms. Some of those
definitions are discussed below.

"The process by which the participants, together with the assistance of a neutral person or
persons, systematically isolate disputed issues in order to develop options, consider alternatives
and reach a consensual agreement that will accommodate their needs."22- Floberg and Taylor

21
Mediation and Dispute Resolution In Nepal(Mukti Rijal)

22
WHAT IS MEDIATION? NSW RURAL ASSISTANCE AUTHORITY, at 1 para 1.
Goldberg defines that mediation is a negotiation carried with the assistance of third party neutral.
The mediator in contrast to the arbitrator or judge has no power to impose an outcome on
disputing parties.23

R.D. Rajan defines that mediation is a case evaluation or assisted/facilitated negotiation or

communications for agreement of assisted communications for agreement.24

Mediation is capacity to reorient the parties towards each other, not by imposing rules on them,
but by helping them to achieve a new and shared perception of their relationship, a perception
that will redirect their attitudes and disposition toward one another. - Lon Fuller

As per Ban Ki Moon, General Secretary, UN, Mediation is one of the most effective methods of
preventing, managing and resolving conflicts.

As per Section 2(h) of Mediation Act, 2068, mediation means a process to be followed to settle a
dispute or case with the assistance of a mediator.

Mediation is becoming a more peaceful and internationally accepted solution to end the conflict.
It can be used to resolve disputes of any magnitude. Also the it is an informal process where
mediator helps the party to jointly explore and reconcile their differences.

3.2 Characteristics of Mediation

Parties have right to choose neutral third party, mediator who assists them

It doesn’t apply the legal rules

Parties are decision-makers

Parties may easily change mediator

It reduces backlog of the court

Solution is determined jointly by parties

It applies procedure of flexibility

Parties relationship may be positive unlikely to harm

Focus on present and future

23
Subedi, supra note 33, at 382-383
24
RAJAN, supra note 37, at 279 (2005)
Time quick, cost effective, less formal, cost of parties equally borne, efficient method of dispute
resolution

If mediation process did not succeed, parties are free to enter court in regular process

3.3 History of Mediation

The history of mediation goes back to Ancient Greece, where village elders used to mediate local
disputes between the villagers. The activity of mediation appeared in very ancient times. The
practice developed in Ancient Greece (which knew the non-marital mediator as a proxenetas),
then in Roman civilization. (Roman law, starting from Justinian's Digest of 530–533 CE)
recognized mediation. The Romans called mediators by a variety of names,
including internuncius, medium, intercessor, philantropus, interpolator, conciliator, interlocutor, i
nterpres, and finally mediator.

Following the war against Rome, the Kushites sent mediators to Augustus, who was in Samos,
and in the year 21/20 BC, a peace treaty was concluded.

Now mediation is a form a professional service, and mediators are professionally trained for
mediation.

In the UK mediation has seen a rise as a service since the Children and Families Act 2014 made
it compulsory for separating couples to go through a Mediation Information and Assessment
Meeting (MIAM) before hearing in the Court.

There are some important statistics provided regarding the growth of the UK commercial
mediation market increased by 20% from 2016 to 2018; this refers to commercial mediations
rather than those relating to small claims. There was also increased scheme-related activity,this
included activity from NHS Resolution and the Court of Appeal, which meant scheme related
activity made up to be 37.5% of all mediation activities (HSFNotes, 2018).

The statistics in 2018 also refer to increased success rates in mediation with 74% achieving
settlement on the day of the mediation session, reflecting the speedy nature of mediation once
again.
History of Mediation in Nepal

The non-adversarial dispute resolution tools-mediation, medi-arbitration and arbitration

practices- though not defined and understood in the contemporary sense of the term, had been in
use in Nepal to settle disputes since the ancient times. Lord Krishna – (the mythical figure) was
the doyen of mediation as highlighted in the Hindu epic Mahabharata.

Lord Krishna had used his conciliation and persuasion skills to settle dispute on the claims to the
succession to the throne of Hastinapur between Kauravas and Pandavas purportedly to avert the
most disastrous fratricidal war. Similarly, the famous Arthasastra of Kautilya speaks of the rich
dispute resolution traditions as a part of social system in the ancient past. According to the
Kutilya, Sabha or the village assembly was the first body for mediation of dispute. This was
followed by Panchayat which was a collective of selected members from village. The knowledge
of law was not necessary as and when the case concerned the disputes among the cultivators,
merchants and foresters. It was recommended that the cases should be settled with the help of
jurors (mediators) selected from the castes professions and occupations of the parties
themselves25

If we go further back to the ancient history of Nepal, local institutions used to organize
discussion to regulate social functions and resolve disputes. The formal discussion about the
legal history of Nepal starts from Kirants. The dynasty of Kirants commonly known as the first
ruling dynasty in Nepal, created a crude form of government and judicature. In resolving
disputes, they used to take the perspectives of all conflicting sides, find commonality of interests,
construct a solution and legitimize this by sacred dharma(institutional duties) interlinked with
custom and morality. The Kirant regime had utilized Mukhiya, (village chief), Bichari (person
knowledgeable on legal matters) and Pancha-Bhaladmi (five elderly gentlemen) to mediate most
of local disputes. The communities often considered elderly persons as source of wisdom and
implemented their advice on matters of public and private concerns.

The Lichchhavis conquered the Kirants Kingdom of Kathmandu and introduced state based on
religious myths and realities. They paid attention to the development of well managed justice
system in the country.

25
Altekar,2001
However, in doing so, rulers could not be free from religious prejudices and influnces.As a
result, the king was made the source of all state powers. During the Lichchhavi regime, dispute
resolution practices were institutionalized into Panchali system-a public place for meeting and
adjudicating disputes. Arya Samaj and Birtawal were also given some powers to mediate local
disputes. The Lichchhavi kings introduced social system based on Hinduism. The Kings were
well versed in the text of Hinduism.26

Thereafter, the Mallas started to rule the country. They also accepted the religious influence in
the process of dispute resolution. However, some Malla Kings significantly reformed the judicial
systems. The Malla King Ranjit Malla had decreed that no one should do injustice. Punishment
should be inflicted according to the degree of crime. Unless the guilt was proved, no accused
person should be punished they composed one central court for civil disputes appeals known as
Kotlinga and Itachapali.Mallas issued legislative incorporations known as Thitis and
administration of justice was governed under the Thitis.

From the earliest times to Malla period, the principalities in the Kathmandu Valley made
significant contribution towards the formulation of definite, practical and beneficial rules for
human conduct. They also paid attention towards the establishment of law-administering
agencies beginning at the village level to upwards. King Jayasthiti Malla deserves special
mention for his contribution in social and judicial reforms. His code known as Manab
Nyayasastra constitutes an important landmark in history of Nepalese law and justice. The Malla
regime introduced institution such as Praman (chief administrative officer) and several tiers of
Panchayat to mediate local disputes.

The Shah regime that succeeded the Malla rule legitimized various traditional arrangements
including Pancha-Kachahari, Birtawal and Mukhiya and Amal Kot-Kachahari (the village court
consisting of elites of various factions) to mediate and resolve disputes at community level. All
these methods negotiated and secured consensus through dialogues, consultation and mediation.
However, they did not challenge the customary institution and norms of society. In fact, there
was a different set of elders(Panchas) for each case If the case required the knowledge of law, the
knowledgeable people ( Brahmans ) were called upon, if the case was related to the land tenure,
the Mahajans were co-opted . Caste disputes were settled by the heads of the different castes.

26
Vaidya and Manandhar,1985
The cases were usually discussed in the local temple whose atmosphere inspired awe and
deterred the tendencies to tell a lie.

Before the unification of Nepal in the 18th century, the country was divided into numerous
independent principalities, each having their separate administration with a ruler (rajah).Yet, the
common feature among these principalities was that they gave recognition to Dharmasastra as
one of the principal norms to rule the country. Dharmasastra and Rritithiti appeared to be in
conflict with each other.

3.4 Types of Mediation

Mediation has several types. They are broadly categorized as facilitative, evaluative, and
transformative:

Facilitative Mediation

In facilitative mediation, the mediator designs a process to support the parties in reaching a
mutually agreeable resolution. The mediator asks question and verifies parties, points of view,
uncovers interests underneath the positions taken by parties. Mediator assists the disputants in
finding and analyzing options for resolution. The mediator does not make recommendation to the
outcome of the case. The mediator is in charge of the process, while the parties are in charge of
the outcome.

Evaluative Mediation

In evaluative mediation, mediator accesses the case, assist the parties in reaching resolution by
explaining the weakness and strength of their cases. Mediator can even predict what a judge in a
court would be likely to do if the case is filed in the court of law. An evaluative mediator might
make formal or informal recommendations to the parties as to outcome of the issues. Evaluative
mediators are concerned with the legal rights of the parties. They may be not be not very much
concerned with needs and interests of the disputing parties. It is generally presumed that
evaluative mediators appraise the case based on legal concepts of fairness. Evaluative mediators
meet most often in separate meetings with parties and their attorneys. They help the parties and
attorneys evaluate their legal position and the costs. The evaluative mediator thus designs the
process, and influences the outcome of mediation.
Evaluative mediation has been practiced especially in court-referred mediation. Lawyers
normally work with the court to choose the mediator. Therefore, they are active participants in
mediation process. In evaluative mediation, mediator is expected to have substantive legal
expertise or knowledge in material aspects of dispute. Because of connections between
evaluative mediation and the courts, most evaluative mediators are lawyers.

Transformative Mediation

Transformative mediation is broadly conceptualized by Flogger and Bush in their book the
promise of Mediation in 1994. Transformative mediation is based on the values of empowerment
of each of the parties as much as possible. It focuses on recognition by each of the parties of the
other party's needs, interests, values and point of view. The potential for transformative
mediation is that any or all parties or their relationships may be transformed during the
mediation.

In some ways, the values of transformative mediation mirror those of early facilitative mediators
fully expected to transform society with those pro-peace techniques. Modern transformative
mediators want to continue that process by allowing and supporting the parties in mediation to
determine the direction of their own process. In transformative mediation, the parties structure
both the process and the outcome of mediation, and the mediator follows their lead.

I: Pre-litigation mediation

It is, quite simply, an attempt to resolve a case before initiating the formal legal process. Pre-
litigation Mediation generally means the mediation conducted before entering court. It is faster
and cost-effective solution to the dispute. It gives a chance to both the parties to end the dispute
in win-win position. So before a case is filed in the court the disputant parties can directly solve
their dispute through mediation process and it thus facilitates to strengthen their relationship and
societal status as well.

It can be divided into two categories:

Community Mediation and

Mediation Centre or Local Authorities.

Community mediation: Community mediation is the process of mediation conducted in
community itself by community members.27 It is a method of dispute management in which
mediators from same community provide volunteer mediation services to help people to resolve
their dispute. It empowers the community to resolve disputes in their common methodological
approach or own style.

Mediation center: Mediation center and other institutions also provide mediation facilities in pre
litigation stage. Mediation centers have professional and skilled mediators. Local authorities also
serve mediation services before filing case for litigation in court.

The existence of various mediation centers have allowed people to resolve their dispute in a
speedy, economic and more effective way which tends to be far more effective than the court
system of judicial administration.

II: Post Litigation Mediation

In this litigation system the mediation is conducted after entering the court .It is called court
litigation method. It is court connected, court annexed, court ordered and court referred
mediation. It is an integrated approach of mediation which court system or improving court
efficiency and access to justice .Post- litigation mediation is either.

Court Annexed Mediation

Court Referred Mediation

Court Annexed Mediation is mediation process conducted under the supervision of court, after
such court has acquired jurisdiction of the dispute. Court-annexed mediation is where a registrar
or other officer of the Court is the mediator.28 . It is performed inside the court. Generally, when
a case in filed in court or proper authority either in judicial or quasi-judicial bodies, then the
same authority tries to settle disputes by mediation process in their own initiated mediation
centre of the authority.

Court Referred Mediation always involve a conflict and disputants whose case has been
specifically selected by the court to be mediated by representatives. The court refers the case to a
27
Shambhu Pd. Chattel “Dispute Management through Community mediation: A Sociological
perspective” Voice, CVICT< Issue 26 ( 2004), P.2
28
http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_practiceprocedure/
sco2_mediationinthesc/court_annexed_mediation.aspx(July 2, 2019, 9: 30 AM).
mediator upon request of the parties. The objective is to help the disputing parties reach a
mutually acceptable agreement between or among themselves on all or any part of the issues in
dispute. After the completion of mediation, the mediator or mediation centre submits the
mediation report to the concerned court.

3.5 Advantages of Mediation

The most important advantage of the mediation is, it solves the both problems and disputes
between parties. It is informal, quick, economical, flexible and less traumatic than more formal
procedures. Some of the advantages of mediation are discussed below.

Voluntary: Mediation is considered to be a voluntary process to reach a mutual settlement of

issues in dispute. Voluntary generally refers to two important aspects (i) Something that is freely
chosen, free participation and freely made agreements between the parties and

(ii) That there is no force or influence from anywhere regarding the settlement of disputes.

Non – coercive: Since mediation is a voluntary process it is non-coercive in nature, no person

holding an influential position can coerce any party to agree to a settlement. Pressure can be
created in a mediation process to reach an agreement but until the parties are satisfied no
conclusive agreement can be reached.

Preserves Relationships: One of the most effective benefits of mediation is that it can help
preserve relationships, business and personal, that would likely be destroyed through years of
litigation, important relationships can often be saved.

Confidential: Unlike the potential publicity of court proceedings, everything said at the
mediation is entirely confidential to the parties (unless specifically agreed otherwise)

Reduced Costs: Generally the cost is greatly reduced in comparison with trying to settle the
matter through court. Traditional litigation is very expensive and the total cost is highly
unpredictable.

High rate of compliance: Parties who have reached their own agreement in mediation are also
generally more likely to follow through and comply with its terms than those whose resolution
has been imposed by a third party decision-maker.
Flexible: Resolutions can be tailored to the needs and underlying concerns of the parties and can
address legal and non-legal issues as well as providing for remedies unavailable through
adjudicative processes.

Faster outcome: Because mediation can be used early in a dispute, an agreement can usually be
reached quicker than if pursuing through the courts.

It saves the court time. If case is solved through mediation it stops the court being over burdened
with cases.

Mediation is relatively simple. There are no complex procedural or evidentiary rules which must
be followed.

3.6 Disadvantages of Mediation

One of the main disadvantages of mediation is a lack of formal rules, which can make it difficult
for two disagreeing parties to reach a compromise. Mediation, too, has potential shortcomings. 29

Mediation is informal. In the mediation process, there are no formal rules which need to be
followed.

Mediation is unpredictable. Since the mediation process is voluntary it is not predictable. Parties
are not compelled to continue mediation and at any point in time, either of the party can opt out
of the mediation and resort to a proper lawsuit.

It can be very difficult to make sure that the settlement is fair to both parties.

Parties have limited bargaining authority and do not always result in an agreement.

It does not settle the issues relating to crime, state, contempt of court, case of imprisonment, or
cases out of the claim.

It does not always result in an agreement.

In the mediation process things can turn out to be unfair in certain circumstances where one party
is very aggressive and powerful and the other is weak and timid.

29
Shreekanta paudel An overview of mediation and practice of commercial mediation in Nepal,
10, Business Law Journal, 46 (2007)
Chapter Four

Mediation Process
4.1. Proceedings of Mediation
In comparison to litigation, mediation is flexible process. It provides unlimited opportunities for
the parties and mediator to exercise flexibility due to minimal procedural requirements. There are
many forms of mediation and some are more formal or follow more set patterns than others. The
existing Nepalese legislation concerning Mediation has provided a particular set of process for
carrying out the procedure of mediation, which is discussed below.

Mediation Act 2068 in chapter-3 deals on proceeding of mediation to be commenced30

(1)Where a party of a dispute, which is not filed in a court, serves a notice to another party or the
concerned parties submit an application to the adjudicating body in connection with a dispute
pursuant to Sub-section (3) of Section 3 or adjudicating body issues an order to settle a dispute
thorough mediation pursuant to Sub-section (4) of Section 3, it shall be deemed to have
commenced the proceedings of mediation.

Provided that, the proceedings of the community based mediation shall be commenced when a
request is made to the community by the concerned party.

(2) Upon the commencement of the proceedings of mediation, any of the party shall submit the
dispute to the mediator.

(3) Upon the commencement of the proceedings of mediation pursuant to Sub-section (1), except
as otherwise provided in this Act no adjudicating body shall interfere in such case until the
disposal of the mediation proceedings.

With regard to procedure relating to settlement of disputes, Mediation Act 2068 provides:

(1) The procedure relating to the settlement of a dispute through mediation shall be as prescribed
by the parties.

(2) In case, parties agree to settle a dispute through mediation by following Rules or procedure
framed by an agency which offers mediation service, such dispute shall be settled through
mediation by following such Rules or procedure.

(3) While making settlement of a dispute as so ordered by the adjudicating body, the dispute
shall be settled through mediation as per the procedure made or ordered by the adjudicating
body, if any.

30
Article-14, Mediation Act 2068
(4) In the absence of the procedure or Rules pursuant to Subsections (1), (2) or (3), the mediator
shall specify an appropriate procedure by considering the nature of the dispute and the desire of
the parties to settle the dispute promptly, and the dispute shall be settled accordingly.

(5) While fixing procedure pursuant to Sub-section (4) it shall be, inter alia, set out the following
procedure:

(a) To produce own claim and reply by the parties before the mediator.

(b) To hold separate or joint meeting with the parties

(c) To seek any information or evidence or document from the parties.

(d) To provide access to the information, evidence or document sought pursuant to Clause (c) to
the other party.

(e) To seek alternative grounds for mediation from parties for resolving the dispute

(6)Notwithstanding anything contained elsewhere in this Section, the Board may frame and
promulgate a model procedure for resolving the dispute.

4.2 STAGES OF MEDIATION

Court adjudication procedures are highly structured and institutionalized, typified by detailed
rules and numerous compliance mechanisms. In comparison to litigation, mediation is flexible
process. It provides unlimited opportunities for the parties and mediator to exercise flexibility
due to minimal procedural requirements. So, it is impossible to describe specific procedures for
its conduct. In addition, there are many forms of mediation and some are more formal or follow
more set patterns than others. The classical form of mediation that has been taught and used for
decades in such areas as family law and community dispute resolution centers is still central to
the approach taken by most mediators. Many of the steps and techniques are applicable to all
forms 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: (Opening statement or Introductory Phase): The mediator will wait until both parties
are present and then make introductions. The physical setting will be controlled so that no party
feels threatened. Most mediators will ask that if children are present, they wait outside. The
mediator will then give an opening statement.31iDuring the introductory remarks will set out the
ground rules for the mediation. These ground rules are what help the mediation move along
smoothly. The mediator will usually ask that if attorneys are present, they can confer, but the
clients should speak for themselves. Parties should not interrupt each other; the mediator will
give each party the opportunity to fully share their side of the story.32

Second Stage: (Commitment Phase): Normally the mediator asks to make commitment by the
parties they will help each other to run the mediation. It is made by both parties and the mediator
for active participation the entire period, priority given to both parties interest and not winning
alone, maintain the confidentiality in all matter, respect all by all and presence of only issue
related persons. Committing not to be aggressive too. These all commitments are essential
because there arises different problems like parties may leave the process in the middle, they
may share the thing discuss in the mediation process.

Third Stage: (Telling story or statement of the problem by the parties): After the opening
statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most
often, the person who requested the mediation session will go first. This stage normally is a joint
caucus or a combined session. 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. If there are lawyers present who make the
initial statement, the mediator will then ask the client to also make a statement. The rationale
behind the statement of the problem is not a search for the truth; it is just a way to help solve the
problem.33

Mediators can also learn from a party's opening statement the hidden concerns or interests of the
parties and sometimes can even discover the real source of the problem. This will give the
mediator an initial view of the challenge ahead as well as assist him/her in determining when and
if caucuses should be utilized.

31
Jessica A. Stepp, How does the Mediation Process work,
(2003).http://www.mediate.com/articles/steppj.cfm (visited on 22 Aug 2015)
32
ibid
33
ibid
Fourth stage: (Private Caucus): Sometime the fourth stage is also covered and discussed in the
third stage as it is also the means of telling story. Is it is dealt so then the whole process contains
seven stages. But here is discussed it separately.

Once the story is shared by the both parties in combined session, then the mediator will take
them individually for the individual caucus. A caucus is a private meeting between the mediator
and one party.

It is to discuss the strengths and weaknesses of his or her position and new ideas for settlement.
The mediator may caucus with each side just once, or several times, as needed. These private
meetings are considered the guts of mediation.34 What is discussed in caucus, the mediator must
not reveal the information to the other party either in caucus or joint discussion. One of the most
important tools that can be employed in a caucus is the reality check.

Fifth Stage: (Analyzing the Problem Phase):This might also be part of other segments. The
mediator tries to find common goals between the parties. The mediator will figure out which
issues are going to be able to settle or those that will settle first.35He also looks for shadowed
powers interferences which the parties have not revealed. Mediator will try to grip their problems
and transfer it to each other.

Sixth Stage: (Brainstorming, option generation and value creation):Methods for developing
options may include group processes, discussion groups or sub groups, developing hypothetical
plausible scenarios, or a mediator’s proposal where the mediator puts a proposal on the table and
the parties take turns modifying it. However, the most commonly used method is the caucus.
Once the participants are committed to achieving a negotiated settlement, the mediator will
propose a brainstorming session to explore potential solutions. This can lead to a final
agreement, which diffuses the conflict and provides a new basis for future relations.36 This step
helps the parties to

find out and select the best option as well as to understand the value of the selected option.

34
Nolo:Law for All, Mediation: The six stages,
http://www.nolo.com/legal-encyclopedia/mediation-six-stages-30252.html (visited 22 Aug
2015)
35
Supra note 22.
36
ibid
Seventh Stage: (Acceptable point of negotiation): Normally the best option among which is
generated before is selected in this stage. The parties come to an agreement of their choice. This
stage makes both party winners when they themselves chose the best of the best option possible.

If an agreement has been reached, the mediator may put its main provisions in writing as the
parties listen. The mediator may ask each side to sign the written summary of agreement or
suggest they take it to lawyers for review. If the parties want to, they can write up and sign a
legally binding contract. If no agreement was 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.37

Eighth Stage: (Vote of thanks phase): This is the final stage of the process. Once the parties
agree and sign the mediation accordingly of seventh stage, the prepared mediation document
signed by both party shall be given to each party and a copy of mediation can also be recorded in
the agency. On the other hand, mediator must give the vote of thanks to each party. Thanking
for their active participation, implementing responsibilities etc. Even if they could not reach the
agreement, the mediator will suggest them what would be better to do further and congrats them
to do the best.

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.

Chapter five

Mediation Practice in Nepal

5.1 History of Mediation in Nepal

The non-adversarial dispute resolution tools-mediation, medi-arbitration and arbitration

practices- though not defined and understood in the contemporary sense of the term, had been in

37
Supra note 25
use in Nepal to settle disputes since the ancient times. Lord Krishna – (the mythical figure) was
the doyen of mediation as highlighted in the Hindu epic Mahabharata.

Lord Krishna had used his conciliation and persuasion skills to settle dispute on the claims to the
succession to the throne of Hastinapur between Kauravas and Pandavas purportedly to avert the
most disastrous fratricidal war. Similarly, the famous Arthasastra of Kautilya speaks of the rich
dispute resolution traditions as a part of social system in the ancient past. According to the
Kutilya, Sabha or the village assembly was the first body for mediation of dispute. This was
followed by Panchayat which was a collective of selected members from village. The knowledge
of law was not necessary as and when the case concerned the disputes among the cultivators,
merchants and foresters. It was recommended that the cases should be settled with the help of
jurors (mediators) selected from the castes professions and occupations of the parties
themselves38

If we go further back to the ancient history of Nepal, local institutions used to organize
discussion to regulate social functions and resolve disputes. The formal discussion about the
legal history of Nepal starts from Kirants. The dynasty of Kirants commonly known as the first
ruling dynasty in Nepal, created a crude form of government and judicature. In resolving
disputes, they used to take the perspectives of all conflicting sides, find commonality of interests,
construct a solution and legitimize this by sacred dharma(institutional duties) interlinked with
custom and morality. The Kirant regime had utilized Mukhiya, (village chief), Bichari (person
knowledgeable on legal matters) and Pancha-Bhaladmi (five elderly gentlemen)

to mediate most of local disputes. The communities often considered elderly persons as source of
wisdom and implemented their advice on matters of public and private concerns.

The Lichchhavis conquered the Kirants Kingdom of Kathmandu and introduced state based on
religious myths and realities. They paid attention to the development of well managed justice
system in the country.

However, in doing so, rulers could not be free from religious prejudices and influnces.As a
result, the king was made the source of all state powers. During the Lichchhavi regime, dispute
resolution practices were institutionalized into Panchali system-a public place for meeting and
adjudicating disputes. Arya Samaj and Birtawal were also given some powers to mediate local
38
Altekar,2001
disputes. The Lichchhavi kings introduced social system based on Hinduism. The Kings were
well versed in the text of Hinduism.39

Thereafter, the Mallas started to rule the country. They also accepted the religious influence in
the process of dispute resolution. However, some Malla Kings significantly reformed the judicial
systems. The Malla King Ranjit Malla had decreed that no one should do injustice. Punishment
should be inflicted according to the degree of crime. Unless the guilt was proved, no accused
person should be punished they composed one central court for civil disputes appeals known as
Kotlinga and Itachapali.Mallas issued legislative incorporations known as Thitis and
administration of justice was governed under the Thitis.

From the earliest times to Malla period, the principalities in the Kathmandu Valley made
significant contribution towards the formulation of definite, practical and beneficial rules for
human conduct. They also paid attention towards the establishment of law-administering
agencies beginning at the village level to upwards. King Jayasthiti Malla deserves special
mention for his contribution in social and judicial reforms. His code known as Manab
Nyayasastra constitutes an important landmark in history of Nepalese law and justice. The Malla
regime introduced institution such as Praman (chief administrative officer) and several tiers of
Panchayat to mediate local disputes.

The Shah regime that succeeded the Malla rule legitimized various traditional arrangements
including Pancha-Kachahari, Birtawal and Mukhiya and Amal Kot-Kachahari (the village court
consisting of elites of various factions) to mediate and resolve disputes at community level. All
these methods negotiated and secured consensus through dialogues, consultation and mediation.
However, they did not challenge the customary institution and norms of society. In fact, there
was a different set of elders(Panchas) for each case If the case required the knowledge of law, the
knowledgeable people ( Brahmans ) were called upon, if the case was related to the land tenure,
the Mahajans were co-opted . Caste disputes were settled by the heads of the different castes.
The cases were usually discussed in the local temple whose atmosphere inspired awe and
deterred the tendencies to tell a lie.

Before the unification of Nepal in the 18th century, the country was divided into numerous
independent principalities, each having their separate administration with a ruler (rajah).Yet, the

39
Vaidya and Manandhar,1985
common feature among these principalities was that they gave recognition to Dharmasastra as
one of the principal norms to rule the country. Dharmasastra and Rritithiti appeared to be in
conflict with each other.

5.2 Nepalese laws on Mediation

Prior to the enforcement of the Mediation Act, 2068 and Mediation Regulation, 2070, no law in
Nepal recognized informal mediation practices. But in recent years, informal mediation practices
have obtained further state recognition: the Constitution of Nepal, (2072) (Article 51(k) (2) under
the policies of the state) stipulates that the State shall follow policies to pursue alternative
means, such as mediation and arbitration, for the settlement of disputes of a general nature.

The Mediation Council – a product of the mediation act – has been active to promote and
strengthen mediation in Nepal. Nepal Bar Association has launched a series of training for
lawyers. The Mediation Act of 2068 and Mediation Regulation legislation of 2070 have
recognized community mediation, ethnic community practice, and corporate mediation.

Nepalese legal framework relating to provisions of mediation are listed below

Constitution of Nepal (2072):

The constitution of Nepal in policies of the state in Article- 51(h) provides the provision to
pursue alternative means such as mediation and arbitration for the settlement of disputes of
general nature.

Article 127 (2) has stated that in addition to the courts, judicial bodies may be formed at the
Local level to try cases under law or other bodies as required may be formed to pursue
alternative dispute settlement methods.

Mediation Act, 2068:

Mediation Act, 2068 is the recent law governing the mediation in Nepal. The Rules regarding
mediation, 2070 is also formed by the Supreme Court. The law provides very process and rules
of the mediation. The Mediation Act is an important and path breaking legislation in the country.
It can have multiplier effects not only in justice delivery but also in rebuilding the community’s
capacity for maintaining peace and harmony in the country.
According to the preamble the Act is expedient to provide for legal provision on the procedure of
mediation to settle dispute through mediation in a speedy and simple manner, to make the
process of dispute settlement less costly, to enhance the access of general public to justice and to
maintain the interest and convenience of general public.

Normally the mediation service is provided through either mediation board of the government or
the private agency registered. The Supreme Court of Nepal has introduced mediation for court
cases by adopting court annexed and court referred mediation for settlement of disputes But the
Act has also given the provisions for the community based mediation. Though the act has not
defined the community mediation but can be stated that it is a mediation provided by certain
group (panel) of people from the particular community.

5.3 Types of mediation

Community Mediation: Any dispute which may be settled through mediation pursuant to
Mediation Act, can be settled even by community mediation. This model, basically encourages
for people to resolve their own disputes. Mediators from the same community provide volunteer
mediation services to help people to resolve their disputes within community by community
members40. It relies on independent, competent and neutral mediators volunteering their services
to act as facilitator with disputants. Community mediation services also shared a common
methodological approach to dispute resolution. The provisions for Community Mediation have
been included in the Nepal Mediation Act, 2068 and Mediation Regulations 2070.

The community based mediation or community mediation is seen as very successful mediation in
Nepal in comparison to court-referred mediation. Provision about community mediation is
provided in chapter 6 of Mediation Act of Nepal. As per the Act, any dispute that can be settled
by mediation can be settled by community based mediation.41 For that the concerned community
may prepare a panel of mediators before or after the arisen of dispute. The panel includes:

(a) Respected persons in local community.

(b) Persons designated by community organization working at local level.

(c) Local social worker.

40
SHAMBHU PD. KATTEL, DISPUTE MANAGEMENT THROUGH COMMUNITY MEDIATION: A
SOCIOLOGICAL PERSPECTIVE, 26 VOICE, CVICT 2(2004).
41
Mediation Act 2068
(d) Teacher or professor working in local school or college

Also as mentioned in section 35 of the Mediation Act about training and services to be provided,
the concerned District Development Committee, Village Development Committee, Municipality
and Non-governmental organization working at local level provides technical and other
assistance, as required, to community based mediator for resolving disputes. Meeting of the
concerned community members frames necessary procedure for the purpose of resolving dispute
through community based mediation. The result of the settlement of dispute done through
mediation is recorded in writing in the local body.

Since 2001, The Asia Foundation has worked intensively in the development and
implementation of facilitated, interest-based mediation and is currently a recognized leader in
community mediation in Nepal. . The Foundation promotes community mediation as a means to
improve access to justice at the local level and establish a culture of conflict resolution within
communities.42The community mediation program has moved beyond dispute settlement to
increasing social harmony through improved respect, communication, and cooperation between
caste, class, and gender relations. A significant outcome of the mediation program has been
the active participation of women and members of marginalized communities, both as
beneficiaries and providers of mediation services. As a result, they are now well respected in
their communities and serve as active citizens by taking leadership roles in other local
development activities.

Court Referred Mediation: Court referred mediation commenced since 2003 is gaining
momentum, rather with a slow pace. The provisioning of mediation as initial step before going to
court procedures, through amendments made in Court Regulations has been the basis in
institutionalizing the mediation processes. A high level Mediation Committee has been formed to
be chaired by the Supreme Court Judge level to facilitate, promote and regulate the mediation
processes in all courts across the country. Based on provisions made in the Court Regulations
concerning mediation, the Supreme Court Mediation Committee has issued a Mediation
Operating Manual. 2006, which has specified basic requirements and procedures of mediation.
Similarly, the Second Five Year Strategic Plan of the Nepali Judiciary, 2009/10-2013/14 with
revisions made through the mid-term evaluation of 2012, has focused mediation as one of the

42
Available at https://asiafoundation.org/resources/pdfs/CommunityMediationinNepal.pdf
strategic interventions with the implementation plan having specific activities, indicators,
timeframe and responsibilities: These documents have been the guiding basis and procedures in
undertaking the promotional activities for mediation and also to streamline the mediation related
agencies. Service providers on mediation have also published several training and reference
documents on mediation.

In Nepal mediation has been a concern for many agencies at the local, national and international
levels. Court referred mediation centers are housed within the court complex.43

5.4 Enforcement of mediation

Nepal has introduced a Mediation Act and brought it into force in mid-April 2014. A new
momentum has been imparted to the use of consensual dispute resolution tools after the
enactment and effective commencement of the mediation act. For almost two years, the Act had
laid dormant in the statute book because of the lack of the supplementary rules and regulations.
Several provisions in the Act tend to be substantive and precise. The provisions in the Act are
explained, clarified and elaborated through the supplementary rules and regulations.

However, the rules and regulations can only prescribe the details and procedures subject to the
limit laid down by the Act. No rules and regulations should supersede the provisions of the
parent Act. In case there are grounds to prove the occurrence of such overriding, the court can
annul the rules or part of the impugned rules if they are challenged in the court of law. Going by
the provisions of the Mediation Rules and Regulations, one can say that the substantive
provisions of the mediation act have been largely elaborated and explained by the rules and
regulations to set stage for implementation. Moreover, shortcomings can be noticed, improved
and reformed only after the lessons and issues are gathered through implementation. The
experiences and lessons can supply the empirical data for reform and improvement. At the
present moment, when the law itself is new, and yet to be fully brought into operation it is too
early to pinpoint and figure out its pitfalls. Such an exercise at present would be very much
theoretical and premature though there may be areas where amendments and modifications
would be needed in the immediate future. Where would the scheme of the mediation provided by
the national law fit in is also a question to be dealt with.

43
UNDP Nepal , Supra note 60
The enforcement of the law has at present triggered off a flurry of activities in different quarters.
The Mediation Council – a product of the mediation act – has been active to promote and
strengthen mediation in Nepal. Nepal Bar Association has launched a series of trainings for
lawyers and law practitioners on mediation tools and senior lawyers have started championing
the cause of mediation in Nepal. The law practitioners who tacitly disfavoured and resisted the
use of mediation in the past assuming that it tends to curtail and diminish the professional scope
of lawyers have now accepted the growing popularity of this consensual mechanism for dispute
resolution. They have started to realize the fact that mediation can open up new scope and
possibilities in the area of their professional development too. As the judiciary is committed to
promote court referred mediation to lessen the load of litigation based conflicts, the law
practitioners are compelled to transform their assumptions and attitudes, and accept that the
consensual dispute resolution can contribute better for accessing justice to the ordinary people.

Similarly, the government especially, the Ministry of Federal Affairs and Local Development
(MoFALD), have also started to train its officials especially at the DDCs to support the process
of community mediation in VDCs.

Moreover, Local Governance and Community Development Program (LGCDP) – a multi-donor

supported program implemented by MoFALD has prioritized community mediation as one of the
core services to be delivered by village development committees and municipalities. The District
Development Committees have taken interest to support the mediation services, and during the
last Fiscal Year 2014/2015 AD some DDCs supported the promotional and capacity building
activities too. In the sphere of community mediation the contribution of the civil society
organizations has been very seminal and important. In thirty one districts civil society
organizations have assisted the municipalities and VDCs to set community mediation services.
Thousands of disputes have been resolved through resort of mediation in the rural communities
of Nepal. Mediation permits and encourages the disputing parties to have active participation in
and more control over the process of resolving their disputes. It is characterized by flexibility,
informality, and control by the parties to a dispute.

Using mediation services incurs fewer costs, and the process protects privacy and confidentiality.
The mediation allows for voluntary participation of the disputing parties in resolution process in
a fairer and legitimate way. It supports the crafting of a creative and mutually satisfactory
resolution. It helps to restore and enhance the parties’ relationships and maintain their dignity.
Mediation as a tool for appropriate dispute resolution has been increasingly used in both national
and international jurisdictions. The most important benefit of mediation is that it is very much
suitable and appropriate for the resolution of multiparty and multi – stakeholder disputes, issues
and conflicts.

The process is less complex, simple, democratic and transparent. It provides practical solutions
tailored to the interests and needs of the parties themselves. It ensures durability of agreements
and preservation of relationships and dignity. In Nepal as we have enacted the mediation law, it
should be implemented in an effective manner to reap its benefits in the delivery of justice to the
ordinary underprivileged people in the country.44

5.5 Challenges of Mediation

Convincing the people that mediation is the best solution: The people in the rural areas still do
not have the knowledge about mediation practice in that situation it is difficult to convince the
people that the mediation could help to settle dispute.

Staying neutral:

A major challenge in mediation service is how to stay neutral. A mediator must

not influenced financially and emotionally. Mediator need to hear the parties issues to stay fair.

Trying to become mediator:

It can take a years to build a practice and to gain the trust to become mediator.
Finding the parties:

People especially from Nepalese society finds general court procedure to get the
justice. People are not aware of the benefits of the mediation process. In such situation, it is a

Challenge to find the parties.

44
THE HIMALAYAN TIMES OCTOBER 27,2015
Chapter six

Findings, Recommendation and Conclusion

6.1 Findings

According to the research, mediation has been used as an ADR process for dispute resolution in
Nepal for a long time.
During my research report, I discovered that, despite the fact that our country has a mediation
law, many people are unaware that disputes can be resolved outside of court through the ADR
mechanism.

ADR has proven to be far more effective than the adjudication process of courts of law in not
only resolving cases and providing justice.

If the dispute is resolved through ADR, the parties have a good chance of maintaining a good
relationship.

Mediation is a popular method of resolving disputes.

The country's law has also provided various provisions that prescribe mediation as a method of
dispute resolution. The Mediation Act of 2068 was passed, legalizing court-referred mediation
and community mediation. Even though laws have been enacted, people are not as aware of
these methods as they should be, particularly in remote areas. As a result, the responsible
authorities must pay special attention to promoting these mechanisms in remote areas.

The Mediation Act of 2068 was passed, legalizing court-referred mediation and community
mediation. In addition, community-based mediation is regarded as a more successful form of
mediation in Nepal than court-referred mediation.

6.2 Recommendation

In our country, Nepal, the method of ADR definitely helps in resolving disputes and maintaining
good relations between the parties. So, the primary focus should be on using these ADR methods
as a process for dispute resolution. Although several laws have been enacted that provide for the
resolution of disputes through various alternative measures, their implementation has not been
consistent. This is due to a variety of factors, including a lack of proper knowledge, skilled labor,
and so on.

Regarding the recommendations, the government and other stakeholders are working to improve
mediation practices, which will eventually lead to easier access to justice. Certain codes of
conduct must be followed during mediation. Strict penalties should be imposed for such acts.

Following are some recommendations based on the findings mentioned above:

 Mediation should be promoted by the government and other relevant authorities.

  Many cases are not sent to mediation. As a result, it should be investigated and
evaluated.
 Mediation must adhere to a set of rules.
 Strict provisions should be included for violations of such conduct.
 Lawyers should be encouraged to participate in mediation activities.
 Mediation training for judges is required.
 It is essential to raise public awareness about the importance of mediation.
 It is necessary to provide the necessary infrastructure, such as space, furniture, and other
logistics.

6.3 Conclusion

The process of Alternative Dispute Resolution is becoming increasingly important in recent

years. As disputes are resolved outside of the courtroom, the parties' relationships have improved
while avoiding more costly procedures. Furthermore, this process provides parties with the
opportunity to reduce hostility, regain control, accept the outcome, resolve conflict in a peaceful
manner, and achieve a high sense of justice in each individual case.

Mediation is a type of alternative dispute resolution in which a third party assists two or more
parties in reaching an agreement. The mediator is a neutral third party who facilitates dispute
resolution rather than directing the parties. It is a win-win process that assists parties in reaching
a mutually acceptable solution. Another thing to remember about the mediation process is that
the parties choose the mediator and decide how to settle disputes, not the mediator. Overall,
mediation processes are fairly effective in terms of both time and cost savings.

And, for a small-traditional, multi-racial, and multi-ethnic country like ours, ADR systems are
more fruitful. Mediation, in particular, is an excellent choice. Mediation has some advantages
over the litigation process. It is more convenient, confidential, and simple.
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http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_practiceprocedure/
sco2_mediationinthesc/court_annexed_mediation.aspx.

USAID, Alternative Dispute Resolution Guide 4,

https://www.usaid.gov/sites/default/files/documents/1868/200sbe.pdf.

Virginia’s Judicial System, Mediation

http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/home.html.
Encyclopedia Britannica, Encyclopedia Britannica INC (1968).

“Principles of Mediation - Boston Dispute Resolution Services”

http://www.bostonresolution.com/BDRS_services_mediation_priniples.html