Mediation in Nepal: A Synthesis of Formal and Informal Practices
Nepal has a long history of settling disputes out of court. The traditional and indigenous system of dispute resolution involving village elders and social “gentlemen” in the resolution of community conflict has been common since time immemorial. These practices have a strong basis in the community and can result in the imposition of community sanctions, such as denying community members’ access to community activities and social celebrations. In this context, the traditional practice appears informal and coercive, rather than private and consensual.
Community mediation, the resolution of disputes by village elders and elected representatives, has long existed at the local government level. However, training for community mediators varied in terms of time commitment and curriculum, and no uniform trainings were provided to mediators.
Prior to the enforcement of the Mediation Act, 2011 and Mediation Regulation, 2014, no law in Nepal recognized informal mediation practices. But in recent years, informal mediation practices have obtained further state recognition: the Constitution of Nepal, 2015 (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.
Mediation has since become a regulated profession, and the law acknowledges traditional community and indigenous dispute resolution mechanisms. A committee constituted at the district level monitors community dispute resolution practices. The law provides for the Mediation Council as its centerpiece in the licensing, monitoring and supervision of mediators. The provision of the Mediation Council—served by the sitting justice of the Supreme Court as the chairman and the Registrar as the member secretary—has created a regulatory mechanism for the practice of mediation at both individual and organizational levels.
As with other professions in Nepal, a mediator must have a mediation certificate issued by the Council, which must be renewed every three years. Any institution providing mediation services is required to obtain a mediation certificate from the Council. The rules, procedures, and the training curriculum for mediators must be approved by the Council, which also monitors mediation activities and the implementation of a code of conduct for mediators.
If there is a provision in an agreement regarding the appointment and number of mediators, the mediators are appointed as provided in the agreement. In the absence of such a provision in the agreement, parties may appoint a mediator by mutual consent. Like arbitration, one or three mediators can be appointed. In the case of an appointment of three mediators, each party appoints one, and the third is chosen either by the two parties, or by the two mediators appointed by the parties, and the third mediator acts as the coordinator of the mediators.
A mediator must have at least forty hours of training from an institution recognized by the Council. Individuals under the age of twenty-five and without a bachelor’s degree from a recognized university are not eligible to be certified as mediators. However, if the parties themselves choose a mediator, a person without any training and university degree can serve as a mediator. Citizenship is a barrier to serving as a mediator in Nepal because non-citizens cannot be mediators, unless there is involvement of a foreign party.
Mediation organizations must obtain approval from the Mediation Council to provide mediation services. Corporate entities’ rules and procedures for rendering mediation services need to be approved by the Council.
While mediation is now a regulated profession in Nepal, the fact that parties may still select as their mediator an individual without specific mediation training and requisite educational degree, combined with the constitutional recognition of community practices of dispute resolution, illustrates the synthesis between formal and informal mediation practices in Nepal.
By Badri Prasad Bhandari, Senior Fellow-Nepal, Weinstein International Foundation