Kathmandu— Nepal is increasingly prioritizing mediation as a key method of resolving disputes, evolving from its traditional role in community governance to a formalized component of the legal system over the past three decades. While court-annexed mediation has existed for some time, recent legislative changes – notably the Mediation Act 2011 and constitutional provisions promoting alternative dispute resolution – have spurred significant institutional development. Now, proposed amendments to the Mediation Act could introduce judge-led mediation, where judges directly facilitate settlements, mirroring practices in countries like Singapore, Canada, Australia, and China.

Evolution of Nepal’s Mediation System

Historically, mediation functioned as a social institution for settling disputes at the community level. The formal legal system began incorporating out-of-court settlements with amendments to civil codes, but practical implementation remained limited until the enactment of the Mediation Act in 2011. This legislation, coupled with recognition within Nepal’s Constitution, has established a solid foundation for mediation, including court rules and infrastructure across the judicial system.

Judge-Led vs. Court-Referred Mediation

The proposed shift towards judge-led mediation represents a distinct approach from traditional court-referred mediation, where cases are assigned to independent mediators. In this new model, serving judges would actively facilitate settlements, leveraging their legal expertise and understanding of potential outcomes. Proponents argue that judges can provide valuable insights into the strengths and weaknesses of each party’s case, aiding in realistic assessments and potentially expediting resolutions.

Safeguards Against Conflicts of Interest

A key concern surrounding judge-led mediation is the potential for conflicts of interest if a judge who mediates a case subsequently presides over it should settlement efforts fail. To address this, the proposed amendment to Nepal’s Mediation Act stipulates that any judge involved in mediation would be barred from adjudicating the dispute later on. This separation aims to maintain voluntariness and encourage open communication between parties during the mediation process.

Lessons From International Models

Experiences in Canada and Australia offer valuable insights for Nepal as it considers this shift. Canada utilizes judicial settlement conferences, focusing on clarifying issues and narrowing claims, while maintaining a distinction from traditional mediation. Australia’s approach highlights the benefits of judges offering legal expertise in complex cases, but also emphasizes the need for safeguards to separate mediation from adjudication and specialized training for judicial mediators. These models suggest that Nepal should prioritize preserving the distinct nature of settlement facilitation and avoid assuming all trial judges are equipped to serve as mediators.

The proposed amendments represent a significant step towards further institutionalizing mediation in Nepal, with ongoing consideration given to international best practices and safeguards against potential conflicts of interest.

(With inputs from RN)

Originally published on abcnews.com.np.