In 1999, by strengthening and defining the judicial role of the VDCs, the Government passed the LSGA that dealt with the subject of local mediation. VDCs have been legally authorized in hearing and determining cases on a variety of matters, including land disputes, forced labor, crime and paupers. LSGA provisioned that such cases would be heard and thereby settled by mediation or three-person arbitration boards, appointed by VDC, as agreed upon the parties to the case. Unfortunately, the legal provisions that gave the judicial power to the VDCs were never implemented. (Khanal, 2014) The Mediation Act specifically provides for the LSGA. The courts or quasi-judicial bodies can refer a sub-judice case to a local body for mediation where it is deemed appropriate and where the disputing parties agree. In addition, the act includes the creation of a Mediation Monitoring Committee ; however, no further specifics are given about how or who is responsible for this.
Mediation Act was enacted in May 14, 2011. Prior to enactment of Mediation Act, 2011 Nepal practiced informal practices of dispute resolution. Mediation Act, 2011 have laid down the key principles and provisions for community mediation. The preamble to the Act identifies mediation as a speedy, cost-effective and easily accessible mechanism in favor of the common person. This Act has provisioned a separate and entire chapter on community mediation. The Act explicitly mentions the procedure, jurisdiction and basic criteria for a mediator . Furthermore, the dispute that can be settled by mediation can be resolved through community mediation. The panel of mediators is prepared before or after the dispute by the concerned community where the criteria for panel of mediators are explicitly set by the Act. The Act embraces the principle of equality set in directive policies of the Constitution by insuring the women’s representative in the panel . It further recognizes informal CBM practices and sets the criteria for the composition of CBM and training for mediators . The act requires that a written record of the result of all settlements be registered with the local body. The Act places responsibility on DDCs, VDCs and Municipalities to provide all necessary technical input to community-based mediators to build their capacity for settling disputes . The Act sets out where linkages and coordination should occur between local bodies and CBM centers. In addition, the NGO that are working in the local level can involve in the activities to provide technical and other assistance to community based mediators for resolving disputes . The major purpose of community based mediators should be to motivate the parties to reach a consensus, an agreement which is mutually acceptable to both parties and not to take CBM as win or loss .
The Constitution of Nepal, 2015 has ensured right relating to justice , right against preventive detention and right against torture and institutionalized international human rights standards. The guarantees to ensure fair hearing, access to legal assistance and protection of human rights are enshrined in the constitution during judicial procedures. Constitution is the supreme and thus has the highest recognition, which renders any statute those clashes with the terms of the Constitution null and void insofar as it violates the legislation. The Constitution of Nepal does not formally accept or acknowledge informal judicial processes. The Constitution maintains a unitary national judiciary, so that the Supreme Court continues to control subordinate courts. Nonetheless, Article 217 requires local authorities to adjudicate some disputes and refers others to alternative dispute resolution . In the degree that the committees are properly circumscribed as alternatives in, and not a replacement of, the ordinary courts and their subject matter, they can have the ability to improve access to justice through a kind of mediation. They are led by their Deputy Mayors or vice-presidents, more than 90 per cent of who are women under a constitutional clause requiring gender-balanced municipal election tickets .
After the promulgation of constitution of Nepal in 2015, local governments have received numbers of exclusive rights including local judiciary rights and Judiciary Committees are formed in each Rural and Urban Municipalities as per the LGOA 2074 which repealed Local Self-Governance Act, 1999. One of the major tasks of the Judiciary committee is to resolve the local level disputes registered at local government level through the mediation process and thus, the CBM today is recognized as an effective way for dispute management at the community level which is a basic service that local governments need to deliver to its people. It is relevant to note that Article 217 of the Constitution of Nepal states about the Judicial Committees that the panel headed by the Deputy Chief of Rural Municipality and Municipality shall settle the prescribed category of disputes arising at local level. Furthermore, with a view to give substantiation to the constitutional provision sections 47 to 54 of the Local Governance Operation Act 2074 provide an elaboration on the constitutional provision on local dispute resolution with intent to give enforcement to it. The provisions in the law intend to focus on mediation requiring that community disputes should be resolved through mediated facilitation to arrive at mutually agreed gain-gain outcome. The LGOA, 2074 that came into effect since 15 October 2017 has paved a strong legal foundation towards institutionalizing legislative, executive and quasi-judiciary practice of the newly-formed local government. The legal mechanism was enacted as per the Article 296 (1) of the Nepal Constitution-2015 so as to leverage local leadership and governance system. The Act provides that the Judicial Committee shall maintain the list of mediators through which the mediation can be done. The role of Judicial Committee to empower the local human resources in CBM is significant in the local level. Every VDC or municipality has to create a panel of trained mediators as a mechanism to help resolve disputes. The mediators need to facilitate the negotiation process of resolving disputes without determining who is wrong and who is right. The outcome should be a win-win and not a win-lose situation as is the case with a judicial award.
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Community Mediation In The United States.
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