Community Mediation: A Jurisprudential and Pedagogic Reflection in the Context of Nepal

18 Pages Posted: 26 Nov 2013

Date Written: June 01, 2007

Abstract

This paper reflects on 'need of evolving community mediation as a popular means of dispensing justice'. The access to justice is one of the core rights of human beings to address 'conflict or causes of conflict'. The concept of justice, which originally evolved through 'different forms of ordeal' both in the eastern and western world, has now been transformed into 'litigation'. It however largely fails to 'ensure justice to ordinary people as the access to litigation has been limited, and the extreme formalism practiced in the form of 'procedures' is unfriendly to people who are pushed to marginal lines in different forms such as ' hierarchical social strata, poverty, and isolation''. Their phenomenal disenfranchisement makes it unable to 'use the litigation as a means of protecting their genuine interests and rights'. Unfortunately, the litigation has been defined as 'mainstream course of justice' which is absolutely 'wrong''. The legal education system in the past has nurtured set of 'doctrines' which treat 'means of justice such as community mediation as 'Alternative Dispute Resolution'. In Nepal, litigation has continuously been used as 'a means of revenues' for the State. Hence, no litigation process can be approached by the people who have no capacity to pay 'different forms of fee'. Nepal as a nation with about 30% of population living under the poverty line cannot be expected to receive benefit from the kind of 'justice system in which the cost is unbelievably unreasonable'. In litigation practice prevalent in system like Nepal, the justice is 'not delivered but auctioned'. Hence, the person who is rich and powerful snatches the justice. The vices of nepotism, financial irregularities, corruption coupled by 'formalism' makes the formal justice system 'a mockery'. Just for example, in many countries in South Asia, the judgment of the court and all other court documents are prepared in English language whereas the literacy proportion of the population is still not above 50%. Hence, the people seeking justice do understand nothing as to what their lawyers and judges are talking about. Is this what we 'intend to have in the name of justice'? Unfortunately, no community mediation and many others similar forms of 'popular justice' system which conveniently provide access to justice to the 'mass of unprivileged and disenfranchised population' have received the 'proper attention of the university education and government funding in so-called developing countries like ours'. This paper therefore challenges the 'authenticity and credibility of justice system' as well as the legal education system in Nepal'.

The paper proceeds with inspectional or primary theoretical discussion on notion of justice analyzes the problems facing the formal justice system and delves into necessity of developing instruments like community mediation. These issues have been dealt pedagogically. The roles and responsibilities the Universities in countries like Nepal are discussed along with the contents and issues they are supposed to address by their cubicula.

Keywords: community mediation, alternative dispute resolution, formal justice system, formalism, dispute settlement, litigation, university legal education, conflict, legislation

Suggested Citation

Sangroula, Yubaraj, Community Mediation: A Jurisprudential and Pedagogic Reflection in the Context of Nepal (June 01, 2007). Available at SSRN: https://ssrn.com/abstract=2359943 or http://dx.doi.org/10.2139/ssrn.2359943

Yubaraj Sangroula (Contact Author)

Kathmandu School of Law ( email )

Dadhikot-9, Bhaktapur
Bhaktapur, Bhaktapur 6618
Nepal

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