The legal formalization of the practice of mediation in Bhutan derives from sections DA 3-1 & DA 3-2 of the Thrimzhung Chenmo (Supreme Law) of 1953. The option to resolve a civil dispute through mediation is incorporated under section 150 of the Civil and Criminal Procedure Code,(Amendment Act 2011) and the Alternative Dispute Resolution Act of Bhutan (2013). Judges in Bhutan are mandated by law to inform litigants of their right to mediate their disputes out of court. While the importance of negotiated settlements is recognized by the judicial system, there is no procedural mechanism established for conducting the mediation process. Thus, mediation procedures have varied widely, depending on who conducts the mediation and local practice.
The Bhutan National Legal Institute (BNLI) has provided training to mediators and educating the public about the beneficial use of mediation since 2012. In conformity with modern mediation standards, Bhutan has been restructuring its practice to provide a process that is interest-based and facilitative in nature. Mediators now understand that confidentiality is at the core of the mediation process.
Both private and commercial mediations are increasing in Bhutan. At the same time, the traditional mediation system has been reinvigorated with community mediation services, which are always provided free of cost. The parties have the option to either go to commercial mediation or community mediation centers.
The Bhutan National Legal Institute (BNLI) has introduced court-annexed mediation in courts throughout the country, as of October 28, 2019, as a significant judicial reform. With the introduction of the mediation units within the courts, people will have enhanced access to prompt and speedy justice, in addition to strengthening community vitality, preserving relationships between the people, and promoting the Gross National Happiness.
This is slightly different from how mediation used to occur before. In the absence of a mediation unit in the courts, if the parties opt for mediation, their disputes are resolved either through private or commercial mediations, or at community mediation centers. In this new system, the judges can refer appropriate civil cases to the Court-Annexed Mediation Unit (CAMU) for judicial mediation. Alternatively, the parties can request the judges to adjourn and refer their cases to in-house judicial mediation services any time before the judgments are rendered. The mediation services are provided by trained and skilled judicial mediators at no cost. If the mediation is successful, the courts will endorse the settlement agreement, render judgement thereon, and enforce accordingly. If the mediation fails, the case will be reverted for adjudication pursuant to the governing laws.
By Judge Pema Needup, Senior Fellow – Bhutan, Weinstein International Foundation