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Alternative Justice Resolution
Free Courts Of Burden

By Mukti Rijal

COURTS are clogged with mounting arrears of cases. The Supreme Court of Nepal alone has over thirty thousand cases lying unsettled. Similarly the district courts are also said to be riddled with case burden. Though some district courts are reported to have disposed of cases to ease the load their number is few and limited. In some districts the courts have started to have few cases registered particularly owing to the security problems. However, these sporadic and extra judicial events do not lead to the solution of the problems.

Competent

Justice to the people have to be delivered through competent organ of judiciary. Problems like the increasing case load and threatening social situations exist. These have indeed impeded the process of justice delivery through competent and legitimate organ of judiciary. Moreover, there is also the persisting concern as to the effectiveness and efficiency of remedy granted by the court of law. The justice handed by the court is based on law and evidence.

Charles Dickens a famous novelist wrote of the problems associated with the justice administration system which is often quoted in legal documents. He wrote "In the high court of chancery, the solicitors are mostly engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee deep in technicalities and making a pretence of equity with serious faces…This is the court of chancery which so exhausts finances, patience, courage, hope so overthrows the brain and breaks the heart. Suffer any wrong that can be done to you rather than come here" This eloquent description of the courthouses by the famous novelist some one and half a century ago provides the truest depiction of the situation obtaining in our part of the world.
The inefficiency and complexity of the court system has led to the maximised use of the alternative justice system. The use and adoption of alternative justice system is very developed in the United States of America. Even the companies in the US have developed and implemented alternative dispute resolution techniques so that the affected or the complaining party is not required to move to the court for adjudication. The corporate sector use alternative dispute resolution programmes to handle complaints and disputes involving customers, franchises, employees and others. Such programmes include multilevel review by peers of the employees, confidential employees advisors, ombudspersons, voluntary arbitration and third party mediation programmes. The alternative dispute resolution procedures have proven to be a relatively inexpensive and expeditious alternative to litigation. They include mechanisms that are perceived as fair, impartial and procedurally adequate.
Alternative dispute resolution process has become very popular in India and other countries in South Asia as well. The alternative dispute resolution embraces only those process in which decision finally arrived at is with the consent of the parties. It appears to be an appropriate word to denote modes of dispute resolution in which parties retain their freedom to decide the outcome of their dispute. Amicable settlement offers disputants opportunities to participate in the process and empowers them to be creative in solving their own problems. Settlement is more likely to result from the parties becoming better informed about the dispute and the risks involved if the matter were to proceed to binding court adjudication. In the event that they have freedom to decide an outcome for themselves they will be more committed to the outcome. Their ongoing relationship is less likely to be adversely affected or jeopardised.

Amicable settlement through recourse to alternative dispute resolution thus enables the parties to resolve the irritants themselves and bury the past. It not only preserves present relationship but sets stage for a better future. It should not be interpreted as a compromise at any cost but a reasonable compromise as a key element.

Concept

In Nepal alternative dispute resolution has not received the due consideration it should have got for justice and harmony. Although there are provisions for settlement of disputes at the prelitigative stage not much has been done to bring it into practice. The Local Self Governance Act 1999 has for the first time introduced the concept of mediation at the local level but its implementation has been subject to authority of the government. The government has not yet lifted the embargo for its implementation through publication of notice in the Nepal Gazette. It is high time the government took step to do needful to implement the provisions so that the overburdened courts are freed from the load and both justice and harmony are realised at the local level.

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